Citation Nr: 1321772 Decision Date: 07/08/13 Archive Date: 07/18/13 DOCKET NO. 09-27 392 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include depression, anxiety, and posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his daughter ATTORNEY FOR THE BOARD William Alan Nelson II, Associate Counsel INTRODUCTION The Veteran had active service from March 1944 to April 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision of the above Department of Veterans Affairs (VA) Regional Office (RO). In January 2012, the Veteran and his daughter presented testimony relevant to his appeal at a Board hearing before the undersigned Veterans Law Judge held at the local RO. A transcript of the hearing is associated with the record. During the course of this appeal, the Court held that the scope of a mental health disability claim includes any mental disability which may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). In light of this decision, the Board has broadened its consideration of the Veteran's appeal as it relates to his PTSD claim as one for a psychiatric disorder, to include depression and PTSD. In an April 2012 decision, the Board denied entitlement to service connection for an acquired psychiatric disorder and bowel disorder. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims ("Court"). In March 2013, counsel for the Veteran and the Secretary of VA filed a Joint Motion for Partial Remand ("Joint Motion"). The Joint Motion specifically stated that the Board failed to adequately address why the Veteran's physician and social worker were not qualified to render a diagnosis of depression and PTSD and failed to address the impact of the Court's decision in McClain v. Nicholson, 21 Vet. App. 319 (2007). An Order of the Court dated that same month granted the motion and vacated the portion of the Board's April 2012 decision that denied entitlement to service connection for an acquired psychiatric disorder. The Court then remanded these matters to the Board for compliance with the instructions in the Joint Motion. The Veteran's claims folder has been returned to the Board for further appellate review. The Board is aware of the Court's instructions in Fletcher v. Derwinski, 1 Vet. App. 394, 397 (1991), to the effect that a remand by the Court is not "merely for the purposes of rewriting the opinion so that it will superficially comply with the 'reasons or bases' requirement of 38 U.S.C. § 7104(d)(1). A remand is meant to entail a critical examination of the justification for the decision." The Board's analysis in this decision has been undertaken after such critical reevaluation of all the evidence as it pertains to the issue of service connection for an acquired psychiatric disorder that remains on appeal. The Board has reviewed the Veteran's physical claims folder, as well as the Veteran's electronic folder through Virtual VA, to ensure a complete review of the evidence in this case. 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). FINDINGS OF FACT 1. The Veteran did not engage in combat with the enemy. 2. The medical evidence of record does not support the conclusion that the Veteran meets the DSM-IV criteria for PTSD at any time during the appeal period based on the best medical evidence. 3. To the extent the Veteran is found to meet the DSM-IV criteria for PTSD, PTSD has not been shown to be the result of a verified in-service stressor. 4. Symptoms of a psychiatric disorder were not chronic in service. 5. Symptoms of a psychiatric disorder have not been continuous since service separation. 6. The Veteran's psychiatric disorder is not related to active service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, to include depression and PTSD, have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from 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; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the decision of the U.S. Court of Veterans Appeals (Court) in Dingess v. Nicholson, 19 Vet. App. 473 (2006), requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date. If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a statement of the case (SOC) or a supplemental SOC (SSOC). Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Supreme Court has held that an error in VCAA notice should not be presumed prejudicial, and that the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Collectively, in notice letters dated in November 2006, December 2006, and March 2007, the RO informed the Veteran of the information and evidence needed to establish entitlement to service connection for his claimed disorders and described the types of evidence and information that he should provide in support of his claims. He was also advised regarding what evidence VA would obtain and make reasonable efforts to obtain on his behalf in support of his claims. He was further advised of how VA determines the disability rating and effective date once service connection has been established in the November 2006 and December 2006 notice letters, which satisfied Dingess notice requirements. While the Veteran has not specifically been provided notice with respect to the broadened claim for a psychiatric disorder, to include PTSD, failure to do so does not harm the Veteran in this case. The Veteran was allowed the opportunity to report his history of psychiatric symptomatology and treatment at the PTSD examination and the Board hearing. The Veteran has been represented by the same representative throughout the course of this claim/appeal and the representative is aware or should be aware of the Clemons case, as well as the evidence needed to substantiate a claim for a psychiatric disorder. However, as will be explained in greater detail below, the Veteran's claim for PTSD is being denied because he is not shown to be currently diagnosed with PTSD. Moreover, the Veteran and his representative have been provided with a copy of the above rating decision, the SOC, and the SSOC, which include discussion of the facts of the claims, pertinent laws and regulations, notification of the bases of the decisions, and a summary of the evidence considered to reach the decisions. In view of the foregoing, the Board concludes that the requirements of the notice provisions of the VCAA have been met, and there is no outstanding duty to inform the Veteran that any additional information or evidence is needed. Neither the Veteran nor his representative has alleged any deficiency in notice, and none has otherwise been shown. Regarding VA's statutory duty to assist in claims development, the Board notes that the Veteran's service records are fire-related in this case. The Board is aware that when service records are unavailable through no fault of the Veteran, it has a heightened duty to assist, as well as an obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). As will be explained below, however, the Board concludes that the heightened duty to assist has been met. The Board initially notes that the Veteran's service treatment records (STRs) from his period of active duty are included in the record. There is no indication that those records are incomplete. However, in response to RO requests, the National Personnel Records Center (NPRC) has stated that records from the Veteran's personnel file were fire-related and the information requested could not be reconstructed. The Veteran was notified that his records were fire-related in the March 2008 rating decision, and the Veteran demonstrated knowledge of the fire-related records in his May 2008 NOD. In the May 2009 SOC, the RO informed the Veteran of the efforts undertaken to obtain his service records and explained that his service treatment records and DD Form 214 were of record. The RO also stated that VA's decision would be reconsidered if the records were located at a later date. While the Veteran was not specifically asked to submit any service personnel records he may have in his possession or advised that it was ultimately his responsibility to provide the evidence, the failure to do so is non-prejudicial. He had previously been advised to submit any evidence in his possession that pertained to his claims in the notice letters discussed above. He has not indicated that he is in possession of any service personnel records. Therefore, in light of the foregoing, the Board finds that further efforts to obtain missing service records would be futile. The Veteran has also been adequately advised regarding the unavailability of his service personnel records in accordance with 38 C.F.R. § 3.159(e). The Board additionally notes that the claims file contains all available evidence pertinent to these claims. VA has requested records identified throughout the claims process. The Veteran was given appropriate notice of his responsibility to provide VA with any treatment records pertinent to his claimed disorders and the record contains sufficient evidence to make a decision on the claims. Pertinent post-treatment records relevant to the claims have been submitted or obtained, to the extent possible. Those records are included in the claims folder and have been reviewed in connection with the claims/appeal. All negative replies are of record. There are no additional records found in the Veteran's electronic folder through Virtual VA. The Board would like to note that the case law does not lower the legal standard for proving a claim for service connection in such circumstances, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant. See Russo v. Brown, 9 Vet. App. 46 (1996). Furthermore, the Veteran was afforded with a PTSD examination in September 2011. The examination was conducted by a clinical psychologist with a Ph.D. who reviewed the Veteran's claims folder and performed a mental evaluation of the Veteran. The examination report includes all relevant findings and a medical opinion with sound rationale. The examining clinical psychologist found that the Veteran had no mental disorder diagnosis and did not meet the criteria for PTSD. Upon review, the Board finds that the examination report is adequate. The Court held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. 3.103(c)(2) requires that the RO official or Veterans Law Judge who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the January 2012 Board hearing, the undersigned Veterans Law Judge specifically asked questions as to the Veteran's history concerning his symptoms and treatment he had received. Moreover, neither the Veteran, nor his representative, has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the Veterans Law Judge complied with the duties set forth in 38 C.F.R. 3.103(c)(2), and that any error in notice provided during the hearing constitutes harmless error. The Veteran is also in receipt of disability benefits by the SSA, which explicitly found him unable to work due entirely to lower back disabilities. Although SSA determinations regarding unemployability and disability are not binding on VA, they may be relevant in disability determinations. Masors v. Derwinski, 2 Vet. App. 181, 188 (1992). Because the SSA disability determination was based entirely on the unrelated physical disability of back disorder, and did not include a claimed psychiatric disorder, the SSA records are of no probative value in tending to relate the claimed psychiatric disorder, including PTSD and depression, to service. See Golz v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir. 2009) (acknowledging that VA's duty to assist was limited to obtaining "relevant" SSA records that "that relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate the Veteran's claim")." There must be specific reason to believe these records may give rise to pertinent information to conclude that they are relevant." Id. at 1323. In light of the foregoing, the Board finds that there is sufficient evidence of record to decide this case, and no further development is needed. The Veteran has not made VA aware of any other evidence relevant to his appeal that needs to be obtained. All relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claim. Therefore, we will proceed with appellate review. Service Connection Laws and Regulations Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. The condition at issue, an acquired psychiatric disorder (psychosis) other than PTSD, is a "chronic disease" listed under 38 C.F.R. § 3.309(a), therefore, 38 C.F.R. § 3.309(b) applies. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). PTSD, not being a psychosis, is not considered a chronic disease under 38 C.F.R. § 3.309(a), and may not be service connected under 38 C.F.R. § 3.303(b). Id. In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). In adjudicating a claim for service connection for PTSD, the evidence necessary to establish the incurrence of a stressor during service will vary depending on whether or not the Veteran was "engaged in combat with the enemy." See Hayes v. Brown, 5 Vet. App. 60, 66 (1993). If it is determined through military citation or other supportive evidence that a veteran engaged in combat with the enemy, and the claimed stressors are related to combat, a veteran's lay testimony regarding the reported stressors must be accepted as conclusive evidence as to their actual occurrence and no further development or corroborative evidence will be necessary, provided that the testimony is found to be satisfactory, that is, not contradicted by service records, and "consistent with the circumstances, conditions, or hardships of such service." 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d),(f); Doran v. Brown, 6 Vet. App. 283, 289 (1994). To gain the benefit of a relaxed standard for proof of service incurrence of an injury or disease, 38 U.S.C.A. § 1154(b) requires that a veteran have actually participated in combat with the enemy. See VAOPGCPREC 12-99. If it is determined, as here, that a veteran did not engage in combat with the enemy, or the claimed stressor is not related to combat, a veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor. In such cases, the record must contain service records or other corroborative evidence which substantiates or verifies a veteran's testimony or statements as to the occurrence of the claimed stressors. See Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). Effective July 13, 2010, VA amended its adjudication regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the required in-service stressor. Specifically, the final rule amends 38 C.F.R. § 3.304(f) by redesignating current paragraphs (f)(3) and (f)(4) as paragraphs (f)(4) and (f)(5), respectively, and by adding a new paragraph (f)(3) that reads as follows: 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. For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. 75 Fed. Reg. 39843 (July 13, 2010). The provisions of this amendment apply to applications for service connection for PTSD that were appealed to the Board before July 13, 2010 but have not been decided by the Board as of July 13, 2010. Thus, they apply to the Veteran's claim. In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67 (1997); Layno v. Brown, 6 Vet. App. 465 (1994); Cartwright v. Derwinski, 2 Vet. App. 24 (1991) (although interest may affect the credibility of testimony, it does not affect competency to testify). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465. The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Medical evidence that is speculative, general, or inconclusive in nature cannot support a claim. See Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). A physician's statement framed in terms such as "may" or "could" is not probative. See Warren v. Brown, 6 Vet. App. 4, 6 (1993). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. 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 a veteran or obtained on a veteran's behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service Connection for PTSD Service connection for PTSD requires: medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (conforming to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)); 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). The applicable regulation requires that the in-service stressor or traumatic event involve actual or threatened death, serious injury, or a threat to the physical integrity of self or others and the person's response involve intense fear, helplessness, or horror. See DSM-IV § 309.81 (4th ed. 1994). With regard to the first element necessary for a grant of service connection (medical evidence of PTSD), while there are indications of PTSD in the claims file, the weight of the medical evidence of record indicates that the Veteran has not had a diagnosis of PTSD, in accordance with DSM-IV criteria, at any time during the appeal period. See McClain. The March 2013 Joint Motion specifically stated that the Board failed to adequately address why the Veteran's treating physician and social worker were not qualified to render a diagnoses of depression and PTSD and failed to address the impact of the Court's decision in McClain. In McClain, the Court found that the Board explicitly stated that Mr. McClain's major depression, although attributed at least in part to his service in the Persian Gulf, had been shown by the medical evidence to have resolved. 21 Vet. App. at 322. This case is distinguishable from McClain because in this case, the Board has found that the Veteran's previous diagnoses of PTSD were not adequate and were based on inaccurate factual premises, as discussed below. See, e.g., Cohen v. Brown, 10 Vet. App. 128, 153 (Chief Judge Nebeker, concurring) (VA adjudicators may reject the claim upon a finding that the preponderance of the evidence is against a PTSD diagnosis). In McClain, there was no disagreement over whether the Veteran had a specific mental disorder, only that the Veteran's mental disorder had resolved during the appeal period. In this case, a September 2007 VA treatment record reflected a negative PTSD screen. An October 2008 VA treatment record reflected a positive PTSD screen. In May and July 2009 VA treatment records, a VA social worker provided an Axis I diagnosis of PTSD. A June 2010 VA treatment record reflected a negative PTSD screen. In a September 2011 VA mental disorders examination, the VA examiner opined that the Veteran did not have any mental disorders that conformed to DSM-IV criteria. The Board finds the May and July 2009 diagnoses of PTSD to be of little probative value. While these records demonstrate the presence of some symptoms of PTSD, they are not diagnoses of PTSD that meet the criteria of 38 C.F.R. § 4.125(a). It does not appear that on any of these instances, the medical professionals took the time to actually assess whether the Veteran met the criteria for a diagnosis of PTSD per the DSM-IV. Rather, it appears that the diagnosis was reflective of the fact that in prior treatment sessions it was thought that the Veteran might have PTSD. The September 2011 VA psychiatric evaluation results revealed no indication that the Veteran meets the criteria for diagnosis of PTSD. The Board finds the September 2011 VA psychiatric examination assessment that the Veteran did not have PTSD to be very probative. The VA examiner who conducted the examination was identified as a licensed clinical psychologist. The report notes that it was based on a psychiatric interview. The report set forth in detail the Veteran's relevant social, military, and medical history. The examiner opined that the Veteran did not present with PTSD during the examination. The Board finds this opinion to be the most probative piece of evidence as it actually addresses the symptoms which would be needed for a diagnosis of PTSD to be rendered, but which the Veteran was not experiencing. Unlike a more general psychiatric disorder like depression, a PTSD diagnosis is based on a specific set of criteria. As this opinion is found to be the most probative, it is afforded the greatest weight, and therefore the Board concludes that the Veteran does not meet the criteria for diagnosis of PTSD. It provides, as a whole, detailed reasoning that the Board finds persuasive. According to VBA Fast Letter 06-03 (March 15, 2006), only mental health professionals with certain credentials are qualified to perform initial C&P mental disorder examinations to ensure that examination providers are competent to provide findings and opinions that are valid and necessary for rating purposes. More specifically, licensed doctorate-level psychologists, doctorate-level mental health providers under the close supervision of a board-certified or board-eligible psychiatrist or licensed doctorate-level psychologist, psychiatry residents under the close supervision of a board-certified or board-eligible psychiatrist or licensed doctorate-level psychologist, and clinical or counseling psychologists completing a one-year internship or residency (for purposes of a doctorate-level degree) under the close supervision of a board-certified or board-eligible psychiatrist or licensed doctorate-level psychologist are so qualified. "Close supervision" means that the supervising psychiatrist or psychologist met with the veteran and conferred with the examining mental health professional in providing the diagnosis and the final assessment. The supervising psychiatrist or psychologist must co-sign the examination report. Also, VA specifically considered whether confirmatory opinions of VA social workers and counselors must be accepted under the regulation in the comments to the final rule regarding the liberalization of stressor determinations for PTSD above. VA concluded that the medical opinion of a VA psychiatrist or psychologist, or a contract psychiatrist or psychologist, was required because VA can rely on the consistency and quality of examinations conducted by such individuals. On the other hand, as related to the care of VA patients and appointment of personnel, there is no ensured degree of training, information, and experience necessary to ensure quality and consistency in examinations. 75 Fed. Reg. 39,843, 39,848 (July 13, 2010). The social worker's findings in May and July 2009 are outweighed by the more probative medical findings and opinion of the September 2011 VA psychologist. The VA psychologist's finding that no psychiatric disorder currently exists is based on his expertise and clinical experience in the field of psychiatry, his advanced level of training, and review of the claims file. There is no evidence that the social worker has equivalent expertise and clinical training in the field of psychiatry and there is also no evidence that the social worker reviewed the Veteran's claims file, service treatment records, or otherwise based the diagnosis on a thorough and accurate history. There is further no evidence that the social worker had a doctorate degree, which would be obtained following education in the field of psychology or mental health. See Cox v. Nicholson, 20 Vet. App. 563 (2007) (indicating the Board may assume the competency of any VA medical examiner, including nurse practitioners, as long as, under 38 C.F.R. § 3.159(a)(1), the examiner is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). The social worker also appears to have based the diagnosis predominately on the Veteran's reported symptoms and not on the objective criteria necessary to provide a diagnosis of PTSD consistent with the DSM-IV. The Board also finds that the Veteran's diagnoses of PTSD related to his service in Japan are simply not persuasive because they were based on inaccurate factual premises, as discussed below. The Board therefore affords such diagnoses and opinions limited, if any, probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis); see also Coburn v. Nicholson, 19 Vet. App. 427 (2006) (affirming the holding in Reonal that a medical opinion based on an inaccurate factual premise is of no probative value). They only provide the basis for further investigation of this issue by the VA in a substantive evaluation which was done here in the September 2011 VA psychiatric examination assessment. Only those with specialized medical knowledge, training, or experience are competent to provide evidence on the question of diagnosis and causation. See Jones v. Brown, 7 Vet. App. 134, 137 (1994). To the extent that the Veteran asserts that he has PTSD related to service, as opposed to some other form of disability, as a lay person, he is not competent to offer an opinion on a matter clearly requiring medical expertise, such as providing a diagnosis or a medical nexus opinion regarding the claimed PTSD. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). Moreover, even if it was concluded that the Veteran had PTSD, the requirements for service connection would still not be met for the following reasons. Once a diagnosis is established, the second criteria for service connection for PTSD is credible supporting evidence that the claimed in-service stressor (upon which a diagnosis is based) occurred. In the Veteran's case, the evidence does not show, nor does he allege, that he engaged in combat with the enemy during active service. The Veteran contends that he currently suffers from PTSD as a result of stressful events that occurred while stationed in Japan during his World War II service. The Veteran has primarily asserted that the in-service stressor events of hearing a bomb and injuring his right knee while running from the explosion in fear in July or August 1945, as well as being afraid to turn on the light at night for fear of the enemy, caused him to develop PTSD. He reports that he has a right knee scar as proof of the injury. The Board finds that there is no objective evidence, or even suggestion, that the Veteran "engaged in combat with the enemy." For these reasons, 38 U.S.C.A. § 1154(b) is not applicable in this case. It is also noted that the revised PTSD regulation, 38 C.F.R. § 3.304(f)(3), does not apply in this case. While the Veteran had service in Japan during World War II, against the Japanese, clearly a "hostile military," the Board finds that the claimed stressors in this case are not consistent with the places, types, and circumstances of the Veteran's service in this case. While the Veteran's PTSD has been linked to in-service experiences by medical professionals, as noted above, the record does not reflect that the Veteran had combat service, or had other service that involved exposure to hostile military or terrorist activity. The Board finds that just because a physician or other health care professional accepted the appellant's description of his active service experiences as credible and diagnosed the appellant as suffering from PTSD does not mean the Board is required to grant service connection for PTSD. Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). The Veteran has claimed PTSD due to non-combat stressors, specifically hearing a bomb and injuring his right knee while running from the explosion in fear in July or August 1945, as well as being afraid to turn on the light at night for fear of the enemy. The Board finds the Veteran to not be credible when reporting the in-service events. In a November 1952 letter, the Veteran wrote that he injured his knee in service, but did not report running away from any explosion. In May and July 2009 VA treatment records, the Veteran reported he "felt like crying since the service" and felt depressed, nervous, and easily angered, and reported having seen a lot of dead bodies while in service and having injured his knee in Okinawa, but having lost his Purple Heart. During the September 2011 VA PTSD examination, the Veteran reported cutting his knee when running through a field during service, but did not report running from any explosion. The Board also finds that multiple medical examinations shortly after service do not reflect any right knee injury or right knee scar. During the September 2011 VA PTSD examination, the Veteran also specifically denied experiencing any combat or enemy fire and that he never discharged his weapon under combat conditions. The Board finds that the Veteran's claimed in-service stressors have not been corroborated by service records or other credible supporting evidence. In a July 2007 formal finding, the Joint Services Records Research Center (JSRRC) reported that they were unable to verify the reported PTSD stressors based upon the evidence the Veteran had submitted. As such, there is no confirmation of the non-combat stressors upon which the Veteran's PTSD claim is based. As such, even if it was accepted that the Veteran had a diagnosis of PTSD at any time throughout the appeal period, which as explained above, the evidence does not support; an in-service stressor sufficient to cause PTSD has not been verified. The Board is sympathetic to the fact that the Veteran is trying to recall events that allegedly transpired more than 50 years earlier. However, the main event that he alleged had occurred is likely to have been recorded if it did, in fact, take place. Moreover, the Veteran is essentially contending this single event has affected him so deeply as to cause PTSD, yet he is unable to remember the most basic details of the event. Given the evidence that the Veteran is reporting stressors that did not occur, the Board finds that his statements to medical professionals, both regarding these general stressors and regarding his reported symptomatology on which their assessments of PTSD related to the Veteran's service in Japan have been based, are not credible either. The Board is not refuting the medical opinions of record with its own medical opinion, but refuting the medical examiners' opinions of credibility of Veteran, in this case based on the facts of this case, which the Board has reviewed in great detail. As such, the criteria for service connection for PTSD have not been met, and the Veteran's claim is denied. Service Connection for a Psychiatric Disorder (other than PTSD) Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden, 381 F.3d at 1167. Under the Court's holding in McClain, the Board finds that the Veteran has a current diagnosis of depression. As noted above, the Veteran's VA treating physician reported a diagnosis of depression throughout the appeal period. The Board recognizes that the Court has not fully embraced a "treating physician rule" under which a treating physician's opinion would presumptively be given greater weight than that of any other examiner. Winsett v. West, 11 Vet. App. 420, 424-25 (1998); Guerrieri v. Brown, 4 Vet. App. 467, 471-73 (1993). Nevertheless, the length of an examiner's opportunity or opportunities to examine a claimant may be considered in assigning probative weight. Guerrieri, 4 Vet. App. at 471-73. Thus, the Board finds the diagnosis of depression to be probative. The VA social worker also diagnosed depression in May and July 2009; however, as discussed above, those diagnoses are of little probative value. Even though the September 2011 VA examiner did not diagnose the Veteran with depression, the VA examiner did report symptoms of anxiety and trouble sleeping. The VA examiner also reported no current treatment for a psychiatric disorder; however, noted that the Veteran has been prescribed fluoxetine since 2007 for the treatment of his depression. Because the Board has found that the Veteran had a diagnosis of depression during the appeal period, the Board will address the next two elements of service connection under Shedden. After a review of the evidence of record, the Board finds that the evidence shows no diagnosis of a psychiatric disorder in service, and no psychiatric symptoms in service, including that symptoms of a psychiatric disorder were not chronic in service. Service treatment records are negative for any complaints or treatment for a psychiatric disorder. During the January 2012 Board personal hearing, the Veteran testified that he received treatment for a mental disorder in service; however, as noted above, service treatment records are negative for any complaints or treatment for a psychiatric disorder. In the April 1946 service separation examination report, which includes a summary of the Veteran's significant in-service medical history, the service examiner's review of the history is negative for any reports by the Veteran of symptoms of a psychiatric disorder. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (upholding a BVA decision that gave higher probative value to a contemporaneous letter a veteran wrote during VA hospitalization than to the veteran's subsequent assertion years later). If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). The Board next finds that the weight of the evidence demonstrates that symptoms of a psychiatric disorder have not been continuous since service separation in April 1946. As noted above, the April 1946 service separation examination reflected that the Veteran was not diagnosed with any psychiatric disorder. Curry v. Brown, 7 Vet. App. 59 (1994) (noting that contemporaneous evidence has greater probative value than history as reported by the veteran). Following service separation in April 1946, the evidence of record shows no complaints, diagnosis, or treatment for a psychiatric disorder until 2004. The absence of post-service findings, diagnosis, or treatment for 58 years after service is one factor that tends to weigh against a finding of continuous psychiatric symptoms after service separation. See Buchanan (holding that the Board may weigh the absence of contemporaneous medical evidence as one factor in determining credibility of lay evidence, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability is one factor to consider as evidence against a claim of service connection). While the Veteran is competent to state that he had psychiatric symptoms at any time, including in service, the Board finds that the Veteran's more recent assertions of chronic psychiatric symptoms in service and continuous psychiatric symptoms since service, made in the context of the November 2006 claim for service connection (VA disability compensation) for a psychiatric disorder, are outweighed by the other, more contemporaneous, lay and medical evidence of record, and are not credible. See Charles v. Principi, 16 Vet. App. 370 (2002). The recent statements of chronic psychiatric symptoms in service and continuous post-service psychiatric symptoms are inconsistent with the service treatment record evidence, an absence of complaints or treatment for many years after service, and the histories and symptoms credibly reported by the Veteran during post-service VA and private treatment. See Curry (noting that contemporaneous evidence has greater probative value than history as reported by the veteran). The Veteran's recent statements of chronic psychiatric symptoms in service and continuous post-service psychiatric symptoms are inconsistent with the Veteran's own histories and the findings during service and in post-service VA and private treatment records. In VA treatment records dated from April 1983 to January 1984 and from February 1998 to March 2004, the Veteran did not report or receive any treatment for symptoms of a psychiatric disorder. For treatment, the Veteran would be expected to give a full and accurate history to get good treatment. Yet, in none of these examinations for treatment does the Veteran mention chronic psychiatric disorder symptoms in service, or continuous psychiatric disorder symptoms since service, or problems related to his service. See Cartright, 2 Vet. App. at 25; Pond v. West, 12 Vet. App. 341 (1991); Gardin v. Shinseki, 613 F.3d 1374, 1380 (Fed. Cir. 2010) (upholding Board finding that vague and inconsistent lay statements were not credible because they were in direct contradiction to the more credible, competent, reliable, and clearly documented medical evidence). Other evidence tending to weigh against continuous symptoms of a psychiatric disorder includes a March 1961 VA psychiatric examination, where the VA examiner reported no current psychiatric disability. See Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (Board decision properly assigned more probative value to a private hospital record that included lay history that was made for treatment purposes than to subsequent statements made for compensation purposes). In a March 1970 VA examination, the VA examiner reported no current psychiatric disability. Id. In an August 2002 VA treatment record, the VA examiner reported the Veteran's mood and affect were within normal limits. The Board notes that the Veteran has related his psychiatric symptoms to post-service events and that the psychiatric disorder had a post-service onset. For example, in a May 1998 VA treatment record, the Veteran reported being stressed by the relationship between him and his daughter and her husband since the 1970's. In a December 2002 VA treatment record, the Veteran reported being overwhelmed by caring for his wife, who had recently suffered a stroke. In an August 2003 VA treatment record, the Veteran reported having a situational problem with his wife. In a June 2004 VA treatment record, the Veteran reported feeling worse because of all the sick people he sees when he visits his wife in the VA hospital. In a January 2007 VA treatment record, the Veteran reported being despondent over his wife who was receiving treatment at a VA hospital and requested medication to deal with his feelings about that. Id. The Board finds that the contemporaneous in-service reports by the Veteran and clinical findings, the Veteran's statements indicating a lack of continuity of an acquired psychiatric disorder symptomatology made to health care professionals for treatment purposes, and the absence of evidence of post-service complaints, findings, diagnosis, or treatment for many years after service are more contemporaneous and probative than the more ambivalent and inconsistent statements of in-service symptoms and post-service symptoms regarding a psychiatric disorder the Veteran later made pursuant to the recent claim for VA compensation benefits. See Cartright at 25; Pond (interest may affect the credibility of testimony); Coburn v. Nicholson, 19 Vet. App. 427, 432 (2006) (Board may reject such statements of the veteran if rebutted by the overall weight of the evidence). His testimony before the undersigned regarding his case as a whole and the history of his problems, with his effort to relate those problems to service in the 1940's, was particular negative evidence in support of the Veteran's credibility and his overall accuracy as a historian. Simply stated, the Veteran is found to not be an in accurate historian of his disabilities and his testimony provided highly limited evidence in support of his claims. While the Board does not doubt the sincerity of the Veteran's current belief that his symptoms have been present since his years in service, the evidence contains many inconsistencies that diminish the reliability of the Veteran's current recollections. The Veteran has made inconsistent statements concerning his symptoms. In the September 2011 VA PTSD examination, the Veteran reported anxiety with driving since he returned from military service. However, in an April 2003 VA general medical examination, the Veteran reported not driving alone, because he did not know whether the multiple medications he was taking would affect his ability to drive. He also reported difficulty obtaining a license because he had trouble seeing out of his left eye; he did not report any psychiatric symptoms related to fear or anxiety due to driving. During the January 2012 Board hearing, the Veteran testified that he had psychiatric symptoms since service, but also testified that he had only been treated for a psychiatric disability for the past twenty years and the medical evidence of record only shows treatment for depression since 2007. Based on the Veteran's conflicting statements, the Board finds that the Veteran is not credible to the extent that he reports the onset of his psychiatric disorder. Caluza, 7 Vet. App. at 510-11 (credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony). The Board, on a factual basis, finds that the Veteran is currently not an accurate historian and that his early statements to health care providers actually provides highly probative evidence against the Veteran's claim. The Board also notes that the Veteran's service connection claims to VA for other disabilities in September 1952, November 1953, February 1960, and June 1983 did not include or mention a psychiatric disorder; the first time the Veteran had asserted a psychiatric disorder during service was in November 2006. See Cromer v. Nicholson, 19 Vet. App. 215 (2005) (upheld Board's denial of service connection and finding that a veteran's recent post-service account of in-service events was not credible because the veteran had previously given other histories and theories that did not mention the alleged in-service event, and first "came up with the story" years after service and in connection with the compensation claim). The Board acknowledges that symptoms, not treatment, are the essence of any evidence of continuity of symptomatology (Savage v. Gober, 10 Vet. App. 488, 496 (1997)); however, here, the Veteran filed multiple claims for service connection spanning three decades, but did not mention psychiatric disorder symptoms at those times. This suggests to the Board that there was no pertinent psychiatric disorder symptomatology at those times. While inaction regarding filing a claim is not necessarily indicative of the absence of symptomatology, where, as here, a veteran takes action regarding other claims, it becomes reasonable to expect that the veteran is presenting all issues for which he is experiencing symptoms that he believes are related to service. In this case, the Veteran demonstrated in 1952, 1953, 1960, and 1983 that he understood the procedure for filing a claim for VA disability compensation, and he followed that procedure in other instances where he believed he was entitled to those benefits. In such circumstances, it is more reasonable to expect a complete reporting than for certain symptomatology to be omitted. Thus, the Veteran's inaction regarding a claim for a psychiatric disorder at the time of the 1952, 1953, 1960, and 1983 claims, when viewed in the context of his action regarding other claims for compensation, may reasonably be interpreted as indicative of the lack of psychiatric disorder symptomatology at the time he filed the claims. Regarding the Veteran's statements as to the cause of the current psychiatric disorder, the Board recognizes that 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) (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 he was a layperson, conflicts with Jandreau). However, in this case, the cause of the Veteran's psychiatric disorder involves a complex medical etiological question because it deals with the origin and progression of the Veteran's psychiatric disorder, and because an internal and complex disease process such as a psychiatric disorder is diagnosed primarily on clinical findings or comprehensive testing, and not on symptoms alone. The Veteran is competent to relate symptoms of a psychiatric disorder that he experienced at any time, but is not competent to opine on whether there is a link between the current psychiatric disorder and active service. Such diagnosis and opinion as to nexus requires specific medical knowledge and training. See Rucker, 10 Vet. App. at 74 (stating that a lay person is not competent to diagnose or make a competent nexus opinion about a disorder as complex as cancer). Based upon the above discussion, the Board finds that there are multiple reasons to conclude that the lay and medical evidence that is of record weighs against the claim for service connection for a psychiatric disorder, and outweighs the Veteran's more recent contentions regarding chronic in-service psychiatric disorder symptoms, and continuous post-service psychiatric disorder symptoms. As indicated, there is no credible evidence of chronic in-service psychiatric disorder symptoms, or continuous post-service psychiatric disorder symptoms. Further, there is no medical opinion that even suggests that a current psychiatric disorder either began during or was otherwise caused by the Veteran's military service, and no factual basis for such an opinion, because the weight of the lay and medical evidence demonstrates that there was no psychiatric injury or disease in service, no chronic symptoms in service, or continuity of symptoms since service; therefore, any such purported opinion of nexus to service would be speculative. In Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) and Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010), the Federal Circuit held that while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate that the current disability may be associated with service. Colantonio, 606 F.3d at 1382; Waters, 601 F.3d at 1277. On the other hand, a conclusory generalized lay statement suggesting a nexus between a current disability and service would not suffice to meet the standard of subsection (B), as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all veterans claiming service connection. Waters, 601 F.3d at 1278-79. Here, the only evidence that the Veteran's claimed psychiatric disorder is related to his military service is his own conclusory generalized lay statements, which are unsupported by even speculative medical evidence. As discussed above, the Veteran's psychiatric disorder has been shown to have a post-service onset many years after separation from service and has been related to his family stressors including the relationship with his daughter and her husband and his wife's medical condition. Accordingly, the Board finds that referral for a VA medical opinion for a psychiatric disorder, other than PTSD, is not warranted. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for a psychiatric disorder, and the claim must be denied. Because 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; 38 C.F.R. § 3.102. ORDER Service connection for an acquired psychiatric disorder, to include depression, anxiety, and PTSD, is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs