Citation Nr: 1323028 Decision Date: 07/18/13 Archive Date: 07/24/13 DOCKET NO. 09-20 726 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD), anxiety disorder, and depressive disorder. REPRESENTATION Appellant represented by: Robert W. Gillikin, Attorney WITNESSES AT HEARING ON APPEAL The Veteran and his daughter ATTORNEY FOR THE BOARD E. Woodward Deutsch, Counsel INTRODUCTION The Veteran served on active duty from October 1944 to June 1946. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision of the Roanoke, Virginia, Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, denied service connection for PTSD. The Veteran's claim was later expanded to include his additional alleged psychiatric disorders in accordance with Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009) (holding 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). In November 2009, the Veteran and his daughter testified at a videoconference hearing before the undersigned. A transcript (Tr.) of that hearing has been associated with the claims file. In January 2010 and February 2011, the Board remanded the case for additional evidentiary development. As discussed in further detail below, the Board finds that there has been substantial compliance with its prior remand directives with respect to the issue decided herein. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002).further adjudication. Please note this appeal has been advanced on the Board's docket pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2012). FINDINGS OF FACT 1. The Veteran's mental health symptoms do not meet the criteria for clinical diagnoses of PTSD or anxiety disorder. 2. The Veteran's currently diagnosed depressive disorder is not causally or etiologically related to any disease, injury, or incident in service. CONCLUSION OF LAW The criteria for service connection for a psychiatric disorder, to include PTSD, anxiety disorder, and depressive disorder, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1117, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance Requirements The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim 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 or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice 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) (2012). VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The VCAA notice requirements apply to all five elements of a service-connection claim: Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability. See Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006). Relevant to the Veteran's psychiatric disorder claim, the only issue decided herein, VCAA notice was provided in a letter mailed in February 2007. That correspondence specifically advised the Veteran of the evidence needed to substantiate his claim, as well as his responsibilities, and those of VA, for obtaining such evidence. In addition, that correspondence described how VA assigns a disability rating and an effective date, thereby satisfying the heightened VCAA requirements set forth in Dingess. The Board acknowledges that the February 2007 correspondence predated and, thus, did not address the revised regulatory criteria governing service connection for PTSD. See 38 C.F.R. § 3.304(f)(3) (effective July 13, 2010); 75 Fed. Reg. 39843 (July 13, 2010). Those amendments, in pertinent part, liberalized the evidentiary standard for establishing in-service stressors based on hostile military or terrorist activity. Id. However, such liberalizing provisions are not pertinent in the instant case as the Veteran's purported in-service stressor has been corroborated. Accordingly, the Board finds that the Veteran has not been prejudiced by any lack of notice of the foregoing regulatory changes. As such, absent any evidence to the contrary, the Board finds that the duty to notify under 38 C.F.R. § 3.159(b) has been satisfied in this case. Turning to the duty to assist, the Board observes that the AOJ has obtained the Veteran's complete service treatment records, as well as relevant VA and private treatment records. Significantly, the Veteran has not alerted VA to any additional missing records regarding the issue on appeal. Nor has the claims file otherwise suggested that pertinent records remain outstanding. Accordingly, the Board finds that further records development would unnecessarily burden VA resources without benefit to the Veteran and, thus, should not be undertaken. See Sondel v. West, 13 Vet. App. 213, 221 (1999). Similarly, the Board finds that an additional VA examination should not be undertaken in support of the Veteran's psychiatric disorder claim. Multiple examinations already have been conducted in accordance with the Board's prior remands. The Board recognizes that those examinations have yielded medical opinions that are unfavorable to the Veteran's claim. Nevertheless, the Veteran has not expressly alleged that those opinions are inadequate to decide his claim. Nor has the record otherwise suggested that this is the case. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (finding that VA must provide an examination that is adequate for rating purposes). Thus, the Board finds that there has been substantial compliance with its prior remand directives such that no further examination is needed. In further compliance with the Board's latest remand, the Veteran's claim was readjudicated in an April 2013 supplemental statement of the case (SSOC). The text of that document makes clear that the AOJ has considered the substantive additions to the claims file that have been made since the previous SSOC. Through such evidentiary review, and the aforementioned development, the AOJ has achieved substantial compliance with the terms of the February 2011 remand. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); D'Aries v. Peake, 22 Vet App. 97, 105 (2008) (discussing situations when it is acceptable, instead, to have 'substantial' compliance, even if not 'exact', 'total' or 'complete' compliance, per se). As a final matter regarding the duty to assist, the Board observes that the Veteran has had the opportunity to testify in support of his claim during his November 2009 videoconference hearing. 38 C.F.R. § 20.700(a) (2012). The transcript of that proceeding reflects that the undersigned set forth the issue of service connection for a psychiatric disorder at the start of the hearing. The undersigned then focused on the elements necessary to substantiate the claim and sought to identify any further development that was required. Those actions satisfied the duties a Veterans Law Judge or an Acting Veterans Law Judge has to explain fully the issue and to suggest the submission of evidence that may have been overlooked. See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010) (holding that the requirements of 38 C.F.R. § 3.103(c)(2) apply to a hearing before the Board). Significantly, the Veteran has not contended, and the evidence has not otherwise shown, that undersigned failed to comply with 38 C.F.R. § 3.103(c)(2) or otherwise committed prejudicial error, either by failing to fully explain the issue or by neglecting to suggest the submission of evidence that may have been overlooked. Moreover, there is no indication that the Veteran was otherwise denied due process during his videoconference hearing. In light of the foregoing, the Board finds that VA's duties to notify and assist have been satisfied with respect to the psychiatric disorder claim and, thus, appellate review of that issue may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Analysis In hearing testimony and other documents of record, the Veteran contends that he developed PTSD and other psychiatric disorders during his World War II-era service. Specifically, he asserts that, while serving aboard a Navy destroyer in the North Atlantic, he was startled by the "real loud noises" emitted by the "depth charge" (a type of anti-submarine warfare weapon), which launched from his vessel. See, e.g., May 2007 VA Examination Report, Board Hearing Tr. at 4-5. The Veteran acknowledges that, following his release from service, he was able to cope with his mental health problems for many years. However, he maintains that, since the early 1990s, his underlying symptoms have worsened to the extent that they now warrant service connection. See Board Hearing Tr. at 4-6. Service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). To establish service connection for a claimed disorder, there generally must be (1) medical evidence of a current disability; (2) medical, or in certain instances, 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). Significantly, for purposes of this appeal, the threshold element for PTSD and other mental disorders is a diagnosis that comports with the criteria set forth by the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (1994) (DSM-IV). The Board acknowledges, parenthetically, that the fifth edition of the DSM has now been released. However, the laws applicable to VA still reference the DSM-IV and, thus, the Board will cite that version of the manual in this decision. See 38 C.F.R. § 4.130. The DSM-IV criteria for a diagnosis of PTSD include: A) exposure to a traumatic event; B) the traumatic event is persistently experienced in one or more ways; C) persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness is indicated by at least three of seven symptoms; D) persistent symptoms of increased arousal are reflected by at least two of five symptoms; E) the duration of the disturbance must be more than one month; and F) the disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning. Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (1994) (DSM-IV). In this case, the Veteran's VA outpatient treatment records reflect that he has screened positive for PTSD, but fail to show a diagnosis that fully comports with the above criteria. Accordingly, the AOJ has scheduled him for a series of VA examinations to determine whether such a diagnosis is, in fact, warranted. During the first of these VA examinations, performed in May 2007, the Veteran's exposure to a traumatic event (the release of the depth charge from his Navy destroyer) was conceded. However, the examining VA psychologist determined that the Veteran did not meet the other requisite diagnostic criteria for PTSD. The examiner noted, with significnance, that two months earlier, the Veteran had undergone a psychiatric evaluation at the Salem, Virginia, VA Center for Traumatic Stress, which also had been negative for PTSD. In explaining his rationale for determining that the Veteran's symptoms did not meet the diagnostic criteria for PTSD, the examiner observed that the Veteran lacked "any significant problems with trauma-related nightmares or intrusive, upsetting memories." The examiner further noted that there were "no particular cues or reminders that trigger[ed] emotional distress and strong memories of trauma in the Veteran," nor any manifestations of "significant avoidance behavior." The May 2007 examiner then acknowledged the Veteran's self-described "hyper-startle response to sudden, loud noises," but noted that this manifestation, alone, was insufficient to warrant a diagnosis of PTSD under the DSM-IV. The Veteran has since presented for additional VA mental health examinations in July 2010 and March 2011. Neither examination yielded a DSM-IV diagnosis of PTSD. The examiner who conducted the above examinations also concluded that the Veteran does not meet the DSM-IV criteria for a diagnosis of anxiety disorder. Pursuant to the Board's latest remand, that examiner prepared a March 2011 opinion which acknowledges the impressions of anxiety noted in the Veteran's VA outpatient mental health records. However, the examiner explained that such impressions are not supported by the DSM-IV as "the frequency, number, and severity of the symptoms do not appear to warrant an actual diagnosis of an anxiety disorder." When confronted with conflicting medical opinion evidence, the Board can favor one opinion over another as long as it adequately explains its reasoning. See Wensch v. Principi, 15 Vet. App. 362, 367 (2001); see also Guerrieri v. Brown, 4 Vet. App. 467 (1993) (holding that the credibility and weight to be attached to such opinions are within the province of the Board as adjudicator). Here, the Board finds that the March 2007, May 2007, July 2010, and March 2011 VA examination reports, which collectively indicate that the Veteran does not meet the DSM-IV criteria for PTSD and anxiety disorder, are more probative and persuasive than the countervailing medical opinion evidence, which is limited to a positive PTSD screening and outpatient treatment notations of anxiety. The above VA examination reports were all rendered in accordance with the DSM-IV and are supported by rationales, which clearly explain why the Veteran's demonstrated mental symptoms do not rise to the level of PTSD or anxiety disorder under the applicable diagnostic criteria. In contrast, there is no indication that the Veteran's positive PTSD screening, or the notations of anxiety in his outpatient records, were predicated on the DSM-IV. Nor are any of those clinical impressions supported by an underlying rationale. This greatly reduces their overall evidentiary weight, relative to the well-supported VA examination reports. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding an adequate medical opinion must contain not only clear conclusions with supporting data, but also a reasoned explanation connecting the two); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (stating that a mere conclusion by a medical professional is insufficient to allow the Board to make an informed decision as to what weight to assign to the underlying opinion). Having thus determined that the above VA examination reports are worthy of reliance, the Board finds that the medical opinions contained therein are sufficient to show that the Veteran does not meet the requisite diagnostic criteria for PTSD or anxiety disorder. Moreover, there is no other evidence that suggests that his symptoms comported with such diagnoses either before or at the time he applied for service connection. Nor is there any indication that such diagnoses were warranted at any other time throughout the appeal. Therefore, while mindful of the Court's recent holding in Romanowsky v. Shinseki, the Board finds that this case does not present a situation in which the threshold requirement for service connection is met based upon a disability that manifests prior to the filing of a claim for VA benefits and then resolves before the claim is adjudicated. See Romanowsky v. Shinseki, ___ F.3d ___, No. 11-3272 (Vet. App. May 9, 2013) (considering the application of McClain v. Nicholson, 21 Vet. App. 319 (2007) on a recent diagnosis predating the filing of a claim). For the foregoing reasons, the Board finds that the Veteran does not have current DSM-IV diagnoses of PTSD and anxiety. As such, he does meet the threshold requirement for service connection for either of those disorders. See Hickson, 12 Vet. App. at 253; see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (holding that, absent proof of a present disability, there can be no valid service-connection claim). In contrast, the Veteran does meet the initial Hickson element for service connection for depression, as that psychiatric disorder was diagnosed during his July 2010 and March 2011 VA examinations. See Hickson, 12 Vet. App. at 253. Accordingly, the Board now turns to whether the second Hickson element (in-service incurrence) has been met for that disorder. In this regard, the Board observes that the Veteran has attributed his depression to the same in-service stressor on which his PTSD claim is predicated (i.e., the loud noises that startled him when the depth charge was launched). His assertions have been corroborated by his daughter, who has testified that the Veteran displays symptoms of depression whenever he hears a loud noise that reminds him of the depth charge. See Hearing Tr. at 5. As discussed, the existence of that particular in-service stressor has already been conceded. Therefore, the Board finds the second requirement for service connection for depression is also met in this case. Accordingly, the Veteran's claim turns on whether that currently diagnosed mental health disorder was caused or aggravated by his conceded in-service stressor, or by any other aspect of his active service. With respect to this third and final Hickson element, the record contains uniformly negative nexus opinions. Indeed, the July 2010 and March 2011 VA examination reports, which addressed the etiology of the Veteran's depression, both concluded that the disorder was less likely than not related to his service and more likely the result of traumas he experienced after leaving the Navy. In particular, the VA psychologist responsible for those examinations has cited the Veteran's grief over his daughter's accidental death in January 2001 as the primary cause of his depression, with his concern over his wife's ongoing cancer battle representing another causal factor. As previously discussed, the July 2010 and March 2011 VA examination reports are supported by detailed rationales, which bolster their overall probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. at 304; Stefl, 21 Vet. App. at 124 (2007). Those reports also are predicated on a complete review of the claims file, which further adds to their evidentiary weight. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (holding that among the factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion). Moreover, the Board considers it significant that the findings in the March 2011 VA examination report constitute the most recent additions to the claims file. As such, the Board presumes that the March 2011 VA examiner's opinion is based on a comprehensive review of all pertinent evidence, both for and against, the Veteran's depression claim. See Rizzo v. Shinseki, 580 F.3d 1288, 1292 (Fed. Cir. 2009) (applying the presumption of regularity to the competence of VA examiners). Furthermore, there are no contradictory medical opinions of record. It follows that the Board has no basis to substitute its own independent judgment to reach a different conclusion regarding the etiology of the Veteran's depression. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). Accordingly, based on the July 2010 and March 2011 VA examination reports, which, for the foregoing reasons, are deemed probative, the Board finds that the Veteran's depression is unrelated to his identified in-service stressor or to any other aspect of his active service. As such, the third requirement under Hickson is not met in this case and direct service connection for depression is unwarranted. Significantly, the Veteran has not alleged, and the record has not otherwise suggested, any other theories of entitlement that would allow him to prevail in his claim for service connection for depression. In this regard, the Board observes that, unlike a psychosis, depression is not recognized as a chronic disease for which service connection may be established pursuant to 38 C.F.R. § 3.307 and 38 C.F.R. § 3.309. Nor may service connection for depression be granted on the basis of continuity of symptomatology under 38 C.F.R. § 3.303(b). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Even if the above theories of entitlement did apply in the instant case, there is nothing in the record to suggest that the Veteran's depression manifested to a compensable degree within the initial post-service year so as to warrant service connection on a presumptive basis. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309(a) (2012). Moreover, the Veteran has testified that his symptoms did not become noticeable until approximately 1990, thus negating any showing of continuity of symptomatology that might have otherwise been established through lay evidence. See Hearing Tr. at 4; see also 38 C.F.R. § 3.303(b); Walker, supra. The Board recognizes that his daughter has disputed this account, testifying that she has always known the Veteran to be depressed. See Board Hearing Tr. at 5-6. However, the events to which the daughter attributes her earliest perceptions of the Veteran's depression - his divorce and the death of his other daughter - have nothing to do with his military service. Id. Accordingly, neither her assertions nor those of the Veteran himself would be sufficient to warrant service connection under 38 C.F.R. § 3.303(b), even if that provision applied to his claim. In reaching these conclusions, the Board is respectful of the Veteran's testimony and that of his daughter, and has given careful consideration to both parties' assertions in adjudicating this appeal. Although a layperson, the Veteran is competent to attest to in-service events, such as the launch of the depth charge and his response thereto, which he personally experienced. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (holding that a claimant is competent to provide lay evidence regarding those matters which are within his personal knowledge and experience). He also is competent to report a history of depressed moods and other mental symptoms, which are capable of lay observation. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Similarly, the Veteran's daughter is competent to testify as to mood swings and other behavior patterns that she has witnessed in the Veteran. Id. Moreover, the Board considers both parties' testimony to be credible. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006) (indicating the Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence). Significantly, however, neither party has been shown to have the qualifications to render a diagnosis, or comment on the etiology, of PTSD, anxiety disorder, or depression. Such psychiatric disorders, unlike tinnitus or a broken leg, are not susceptible to diagnosis or etiological opinion by an untrained layperson. Cf. Charles v. Principi, 16 Vet. App 370 (2002) (noting that a veteran is also competent to provide lay evidence of his experiencing ringing in the ears since service); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms, but not to speak as to etiology except in limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg.). Accordingly, while mindful of the parties' sincere testimony that the Veteran meets the diagnostic criteria for PTSD and anxiety, and that those disorders, as well as his depression, had their onset in service, the Board finds that such lay evidence, standing alone, is insufficient to warrant service connection in this instance. In summary, the Board finds that the preponderance of the evidence does not show that the Veteran has current diagnoses of PTSD or anxiety disorder. Nor does the evidence show that the Veteran's current depression is etiologically related to his active service. Thus, while the Board has duly considered the benefit of the doubt rule, that rule is not for application. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 4.3 (2012). The benefit sought on appeal is accordingly denied. ORDER Service connection for a psychiatric disorder, to include PTSD, anxiety disorder, and depressive disorder, is denied. ______________________________________________ S. C. KREMBS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs