Citation Nr: 1322964 Decision Date: 07/18/13 Archive Date: 07/24/13 DOCKET NO. 07-31 359 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD M. Moore, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1968 to April 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which denied service connection for anxiety (panic attacks). In March 2006, the Veteran submitted a notice of disagreement and subsequently perfected his appeal in September 2007. While the Veteran did request a Travel Board hearing on his September 2007 VA Form 9, in a subsequent communication received in October 2007, he withdrew his request for a Board hearing. Accordingly, the Veteran's hearing request is considered withdrawn. See 38 C.F.R. § 20.704(e) (2012). In September 2011, the Board remanded the Veteran's claim of entitlement to an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), to the Appeals Management Center (AMC) for further evidentiary development, including providing him with additional notice, obtaining his service personnel records, Social Security Administration (SSA) records, and updated VA treatment records, and scheduling him for a VA mental disorders examination. The Board is obligated by law to ensure that the AMC complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268 (1998). A review of the record reflects that the AMC sent the Veteran a letter in September 2011 that complied with all notice requirements. Additionally, the AMC obtained and associated with the claims file the Veteran's personnel records, SSA records, and updated VA treatment records. Finally, the AMC scheduled the Veteran for a VA examination in October 2011. However, the Veteran requested that this examination be cancelled and not be rescheduled. Accordingly, all remand instructions issued by the Board have been complied with and this matter is once again before the Board. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran's currently diagnosed acquired psychiatric disability is the result of a disease or injury in active duty service, to include any reported in-service stressors. CONCLUSION OF LAW An acquired psychiatric disability, to include PTSD, was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f), 3.655 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that 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. Prior to the Board's adjudication of the Veteran's claim, letters dated in June 2005 and September 2011 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio at 187. Additionally, the September 2011 letter informed the Veteran of how VA determines the appropriate disability rating or effective date to be assigned when a claim is granted, consistent with the holding in Dingess/Hartman v. Nicholson. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Although the September 2011 letter was not sent prior to initial adjudication of the Veteran's claim, this was not prejudicial to him. After he was provided adequate notice, he was provided time to respond with additional argument and evidence and the claim was readjudicated and a supplemental statement of the case was provided in June 2012. See Prickett v. Nicholson, 20 Vet. App. 370 (2006). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records, personnel records, SSA records, and VA treatment records are in the file. Private treatment records identified by the Veteran have been obtained, to the extent possible. The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. Pursuant to the Board's September 2011 remand, the Veteran was scheduled for a VA mental disorders examination at the Cincinnati VA Medical Center (VAMC). However, the record reflects that the Veteran informed the Cincinnati VAMC that he wished to cancel the examination in October 2011. Additionally, an October 2011 letter and November 2011 Report of Contact from the Veteran indicate that he does not wish to report for a VA examination and would like his claim decided based on the evidence of record. The Board notes that the duty to assist is not always a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). As VA has scheduled the Veteran for a VA examination and he has decided not to report for the examination, the Board finds that the duty to assist has been satisfied with regard to providing the Veteran with a VA examination. As such, the Board will adjudicate the matter based on the available medical evidence of record. See 38 C.F.R. § 3.655 (2012). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Merits of the Claim The Veteran alleges that he has a psychiatric disorder, to include anxiety, panic attacks, and/or PTSD, as a result of the stress of his military service. Specifically, he claims that the fear of serving during the Vietnam War and the guilt he experienced after the loss of fellow service members have resulted in his current psychiatric disorder(s). He also claims that his psychiatric symptoms first began in service. Therefore, he believes service connection is warranted. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. See 38 U.S.C.A. § 1110 (West 2002). However, that an injury or disease occurred in service is not enough; there must also be a chronic disability resulting from that injury or disease. If there is no showing of the chronic disability during service, then a showing of continuous symptoms after service is required to support a finding of chronicity. See 38 C.F.R. § 3.303(b) (2012). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. See 38 C.F.R. § 3.303(d) (2012). In order to establish service connection for a disability, there must be (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 current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection for PTSD specifically requires medical evidence establishing a diagnosis of the disability, credible supporting evidence that the claimed in-service stressor occurred, and a link, established by medical evidence, between the current symptomatology and the claimed in-service stressor. See 38 C.F.R. § 3.304(f) (2012). If the evidence establishes that a 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. See 38 C.F.R. § 3.304(f)(1) (2012); see also 38 U.S.C.A. § 1154(b) (West 2002). Otherwise, the law requires verification of a claimed stressor. As pertinent to the current case, where a determination is made that a veteran did not "engage in combat with the enemy," or the claimed stressor is unrelated to combat, the veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor. See Moreau v. Brown, 9 Vet. App. 389, 395 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). In such cases, the record must include service records or other credible evidence that supports and does not contradict the veteran's testimony. Doran v. Brown, 6 Vet. App. 283, 289 (1994). Moreover, a medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressors. See Moreau, 9 Vet. App. at 395-96; Cohen v. Brown, 10 Vet. App. 128, 42 (1997). 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 posttraumatic stress disorder 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. See 38 C.F.R. § 3.304(f)(3) (2012). Initially, the Board notes that there is no evidence showing that the Veteran had combat service, nor does he claim such. His Form DD-214 is negative for any awards or medals indicating combat experience. Further, the Veteran's DD-214 and other personnel records do not indicate foreign or overseas service, specifically in Vietnam or another theater of operations. As such, the combat presumption is not for application. The Board further notes that the Veteran's claimed stressors seem to be related to a fear of hostile military or terrorist activity. Specifically, he has reported that he was afraid of being deployed overseas and his wife submitted statements indicating that he expressed a fear of "nuclear warfare" being directed at his military post based on his access to classified information. Although the Board does not have access to this classified information, the Veteran's personnel records indicate that he received a secret security clearance and worked in an environment that would allow him access to information regarding such attacks. Although the evidence establishes that his stressors are related to a fear of hostile military or terrorist activity and consistent with the circumstances of his service, the medical evidence is negative for an opinion from a VA psychologist or psychiatrist, or contract equivalent, that confirms that his claimed stressors are adequate to support a diagnosis of PTSD and that his symptoms are related to the claimed stressors. Therefore, service connection cannot be granted for PTSD based on 38 C.F.R. § 3.303(f)(3). As 38 C.F.R. § 3.303(f)(1) and 38 C.F.R. § 3.303(f)(3) are not for application in this case, the Veteran's stressors must be verified to grant service connection for PTSD. In this case, the Veteran's stressors have not been verified. Notably, although the Veteran has reported losing several fellow service members in combat in Vietnam, he did not provide any names of these fellow service members for verification purposes. Additionally, the Veteran's claims of fear related to possible deployment and the risk of attacks against the United States are not verifiable. Although this stressors cannot be verified for the purposes of granting service connection for PTSD, the Board notes that the Veteran is competent to report that he was afraid in service and finds these reports credible. Although the Board finds his allegations competent and credible, the evidence must still establish a medical link between the Veteran's reported in-service stress and his current psychiatric disorder(s). Unfortunately in this case, even if the Board were to ignore the lack of corroborating evidence of an in-service stressor(s) and accept the Veteran's allegations of in-service stress as competent and credible, his claim still fails as there is no evidence linking his current psychiatric disability to service. As noted above, the Veteran was afforded the opportunity to undergo a VA mental disorders examination and nexus opinion in October 2011. However, the Veteran cancelled this examination and indicated that he did not wish to undergo a VA examination and medical opinion. Therefore, an opinion on a possible medical nexus between the Veteran's military service and a current psychiatric disability could not be provided. Furthermore, the medical evidence of record does not provide a sufficient medical nexus to grant service connection. Although the claims file includes numerous VA and private psychiatric treatment records showing treatment for various psychiatric disorders, including possible PTSD, bipolar disorder, depression, and anxiety, none of the records link the Veteran's psychiatric diagnoses to his military service. The only treatment records to even reference any relationship between the Veteran's psychiatric disorder(s) and his military service are an August 2005 private treatment record and a February 2007 VA treatment record. The August 2005 record diagnoses the Veteran with generalized anxiety with panic attacks and notes a history of PTSD related to Vietnam. However, this record is insufficient to grant service connection as it does not actually diagnose the Veteran with PTSD due to his military service, but only transcribes a history as related by the Veteran. The mere transcription of medical history does not transform the information into competent medical evidence merely because the transcriber happens to be a medical professional. See Grover v. West, 12 Vet. App. 109, 112 (1999); LeShore v. Brown, 8 Vet. App. 406, 409 (1995). Further, even if the Board were to accept this notation as a diagnosis and positive nexus opinion, the record includes no rationale whatsoever for this conclusion. A February 2007 VA Mental Health Service Intake Summary notes the Veteran's complaints of nightmares related to loading B52 bombers with nuclear warheads and guilt for the loss of friends as combat casualties. Although the VA clinical nurse specialist noted these complaints, she did not diagnose the Veteran with PTSD or provide a nexus opinion linking the Veteran's psychiatric disorder(s) to his military service, including these experiences. In this case, the only evidence which purports to relate the Veteran's current psychiatric disorder(s) to his military service consists of lay statements from the Veteran, his wife, and his representative. Although laypersons, such as the Veteran, his wife, and his representative, are sometimes competent to provide opinions on certain medical questions, the specific issue in this case falls outside the realm of common knowledge of a lay person as it involves making definitive clinical diagnoses based on knowledge of psychiatry and the etiology of psychiatric disorders. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). While the Veteran can describe what he experiences (in this case, anxious and depressive symptoms), he is not able to provide competent evidence as to the etiology of his psychiatric disability. Providing such an opinion requires medical expertise in the causes of psychiatric disorders, particularly in the context of the Veteran's noted family history of mental illness, emotional abuse as a child, and military experiences. The Veteran, his wife, and his representative have no such expertise. See Jandreau, supra; see also 38 C.F.R. § 3.159 (a)(1) (2012). The Board is also aware of the provisions of 38 C.F.R. § 3.303(b), referenced above, relating to chronicity and continuity of symptomatology. The Veteran and his wife report that he has experienced psychiatric symptoms since service and private treatment records reflect a reported history of mood swings since his early twenties. However, the Board notes that the provisions of 38 C.F.R. § 3.303(b) only apply to chronic diseases as listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). None of the Veteran's psychiatric diagnoses are on the list of chronic diseases and the Veteran has not been diagnosed with psychosis (the only psychiatric diagnosis listed as a chronic disease). As such, the Board finds that the medical nexus element of Hickson cannot be met via continuity of symptomatology. As explained above, the competent medical evidence of record does not demonstrate that there is a relationship between the Veteran's active duty service, including his claimed stressors, and his current psychiatric disability. Although the Board notes the Veteran's current disability and in-service experiences, without sufficiently probative evidence of a medical nexus, service connection cannot be granted. Accordingly, the Board finds that the claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim of entitlement to service connection, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). ORDER Entitlement to 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