Citation Nr: 1323656 Decision Date: 07/24/13 Archive Date: 08/01/13 DOCKET NO. 10-37 476 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in White River Junction, Vermont THE ISSUES 1. Entitlement to service connection for an innocently acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a stomach disorder, to include as due to asbestos exposure, ill-fitting dentures, and/or the service-connected right ankle disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Rebecca Feinberg, Counsel INTRODUCTION The Veteran had active service from October 1954 to August 1958. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from August 2008 and September 2008 rating decisions of the RO. In March 2011, the Veteran testified at a hearing held via videoconference before an Acting Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's claims file. In January 2012, the Veteran was notified that the Acting Veterans Law Judge who conducted the hearing was no longer employed by the Board and was afforded the opportunity for a new hearing. That same month, the Veteran declined the opportunity and asked that his appeal be considered based on the record. In February 2012 and February 2013, the Board remanded the matters captioned hereinabove for additional development. The development is complete, and the claims are now ready for appellate decision. The Board has considered documentation included in the Virtual VA system in reaching the following determination. At present, the system contains VA treatment records that are not physically in the file but were considered by the RO in the last adjudication of the appeal. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of service connection for a stomach disorder, to include as due to asbestos exposure, ill-fitting dentures, and/or the service-connected right ankle disability, is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran is not shown to have manifested complaints or findings referable to an innocently acquired psychiatric disorder during service or for many years thereafter. 2. The Veteran is not shown to have a diagnosis of PTSD that can be linked to a claimed stressor event of his service. 3. Any currently demonstrated acquired psychiatric condition manifested by anxiety or depression is not due to an event or incident of the Veteran's period of active service. CONCLUSION OF LAW The Veteran does on have an innocently acquired psychiatric disability, to include PTSD, due to disease or injury that was incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist Under applicable law, VA has a 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 and 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); 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 agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board finds that the content requirements of a duty to assist notice have been fully satisfied. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). A letter from the RO dated in June 2008 provided the Veteran with an explanation of the type of evidence necessary to substantiate his claim, as well as an explanation of what evidence was to be provided by him and what evidence the VA would attempt to obtain on his behalf. The letter additionally provided him with information concerning the evaluation and effective date that could be assigned should service connection be granted, pursuant to Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA has no outstanding duty to inform the Veteran that any additional information or evidence is needed. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, the Board finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issue has been obtained. The Veteran's service treatment records and post service treatment records have been obtained. He has been afforded a personal hearing. During the hearing, the Acting Veterans Law Judge clarified the issue, explained the concept of service connection, recommended the submission of evidence and held the file open for 30 days. Such actions supplement VCAA and any possible duty owed under 38 C.F.R. § 3.103 (2012). The Veteran has been afforded VA examinations that, for reasons described in more detail below, are adequate. The Board does not have notice of any additional relevant evidence which is available but has not been obtained. The Board is further satisfied that the RO has substantially complied with its February 2012 and February 2013 remand directives to the extent indicated, since the February and June 2013 VA examination addenda answered all questions posed by the Board in its remands. Stegall v. West, 11 Vet. App. 268, 271 (1998). See also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board engagement letter requesting a medical opinion is required). As directed by the Board, the AOJ, afforded the Veteran the opportunity to submit any additional evidence pertinent to the claims, and provided a pertinent VA examination. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the Veteran's claim. Therefore, no further assistance to the Veteran with the development of evidence is required. II. Analysis As an initial matter, the Board notes that the Veteran asserts that his disability stems, in part, from receiving incoming fire during service near Lebanon. While the Veteran had service during the Korean conflict, his personnel records indicate that he was not transferred to a station from boot camp until after this period of war ended, nor does he assert having participated in combat with the enemy during the Korean conflict. He is not in receipt of any awards or medals that denote combat service. He contends that his PTSD or other acquired psychiatric disability is due, in part, to this incident. A finding that a veteran engaged in combat with the enemy under 38 U.S.C.A. § 1154(b) requires that the Veteran participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality, and does not apply to veterans who served in a general "combat area" or "combat zone" but did not themselves engage in combat with the enemy. See VAOPGCPREC 12-99 (October 18, 1999). In this case, the Board finds that the evidence is against a finding that the Veteran engaged in combat with the enemy. The Board does accept that he served on board the USS Wisconsin and accepts that he experienced events consistent with the nature and circumstances of such service. However, such service was not during a period of war. Nevertheless, for the purposes of this decision only, the Board will accept the Veteran's description of this event as during service as credible under 38 U.S.C.A. § 1154(a) in the same manner as it would be accepted under 38 U.S.C.A. § 1154(b). Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Because the Veteran does not claim to have, and the evidence shows that he has never been diagnosed as having, a psychosis, the provisions of 38 C.F.R. § 3.303(b), which provide for an alternative method of establishing service connection through a demonstration of continuity of symptomatology, are not for application. 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As to PTSD, which is what was specifically claimed by the Veteran, there are particular requirements for establishing entitlement to service connection for PTSD in 38 C.F.R. § 3.304(f) that are separate from those for establishing service connection generally. Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). Those requirements are: (1) a diagnosis of PTSD in accordance with 38 C.F.R. § 4.125; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in- service stressor. 38 C.F.R. § 3.304(f). With regard to PTSD, the weight of the evidence establishes that the Veteran has not met the first requirement requiring a valid diagnosis of PTSD. None of the medical evidence of record reflects a diagnosis of PTSD. In fact, the only reference to PTSD in any medical records is a June 2007 VA outpatient report that shows that a screen for PTSD was negative. While the VA records show the Veteran has been prescribed medication for anxiety and depression,, there is no indication that the Veteran was ever diagnosed as having PTSD, and the March 2012 VA examiner specifically found no evidence of an acquired psychiatric disorder, including PTSD. While veterans are competent to opine as to the diagnosis to be attributed to symptomatology in some instances, see Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007), in this case, the medical evidence is more probative than the Veteran's lay assertions. Specifically, the Veteran is not shown to have any medical or mental health training or experience that the VA treatment providers and examiner do possess. While the Veteran reported some symptomatology consistent with PTSD, including nightmares, the VA physician who conducted the March 2012 examination and his regular treatment providers have presented the more probative evidence on the question of whether the Veteran can be diagnosed as having PTSD. Consequently, the weight of the evidence reflects that the Veteran does not meet the criteria for a diagnosis of PTSD. For the foregoing reasons, the preponderance of the evidence that the Veteran does not meet the DSM criteria for a diagnosis of PTSD, and has therefore failed to establish an essential element of the claim of service connection for PTSD. The benefit-of-the-doubt doctrine is therefore not for application with regard to this disability, and it must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). Although the Veteran claimed service connection for PTSD, he has been diagnosed with other psychiatric conditions. The Board will therefore consider whether he is entitled to service connection for these other diagnosed psychiatric conditions. See Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (a claimant without medical expertise cannot be expected to precisely delineate the diagnosis of his mental illness). The Veteran's October 1954 entrance report shows that his psychiatric examination was normal. At that time, the Veteran denied a history of frequent trouble sleeping, frequent or terrifying nightmares, depression or excessive worry, or nervous trouble of any sort. His personnel records show that he was temporarily transferred in April 1956 to Virginia to attend a two-week class. They also show he returned to the USS Wisconsin that same month. An April 20, 1956 certificate shows that the Veteran completed a course of study with the U.S. Naval Command in Norfolk, Virginia. The August 1958 separation report shows that the Veteran's psychiatric examination was normal. On his June 2008 claim, the Veteran asserted that he had PTSD due to battle, sleeping beside high voltage transformers, and treatment during boot camp. In an August 2008 written statement, the Veteran indicated that he had nightmares of war, crews getting washed overboard, sleeping next to high voltage transformers, and getting shot during battle. He had headaches caused by a gun against his head. Internet articles submitted by the Veteran in September 2008 showed that the Wisconsin collided with the USS Eaton on May 6, 1956. The Wisconsin had significant damage to her bow. In an October 2008 written statement, the Veteran indicated that the Wisconsin collided with the USS Eaton during service in May 1955 and described this event as horrifying. An October 2010 VA outpatient record shows that the Veteran was taking prescription medication for anxiety and depression. A November 2010 VA treatment record shows findings of possible anxiety and probable depression with evidence of mood and sleep problems. The March and June 2011 VA outpatient records show prescription medication for anxiety and depression. In March 2011, the Veteran testified that his PTSD was the result of an incident while he was on the battleship, Wisconsin, when it collided with the destroyer Eaton. To the extent that his personnel records show that he was in school in Norfolk at the time of incident, the Veteran denied that. He submitted a certificate showing that he completed school in April 1956, prior to the May 1956 collision. The Veteran denied having been diagnosed as having PTSD. He also denied having been diagnosed with any other psychiatric disorder. He described being fired at in a confrontation with Lebanon in July 1957. In a March 2011 written statement, the Veteran's wife indicated that everything was normal until he returned from service, when he had trouble sleeping and trouble with his stomach due to stress. His dentures, she reported, were never maintained by the Navy. In March 2012, the Veteran underwent VA examination. His symptoms did not meet the diagnostic criteria for a PTSD diagnosis. He also did not have a mental disorder that conformed to the requisite criteria. The claims file was reviewed. During the interview, the Veteran reported having two stressful incidents regarding the ship collision and being fired upon. He described having symptoms of depressed mood, anxiety and chronic sleep impairment. He indicated that, with regard to the two incidents he described, he learned about them through on-ship communications and was not a direct witness to the collision or the direct target of gunfire. No one on board either ship was injured or killed. However, he reported that the crews on both ships were upset and anxious. While these incidents upset the Veteran, they have not generated a diagnosable mental health condition or led to mental health treatment of any sort. In a March 2013 addendum, the VA physician who previously examined the Veteran indicated that a review of the claims file had not been conducted and the Veteran's VA treatment records and previous psychiatric examination were reviewed. The examiner indicated that the Veteran never had a diagnosed or diagnosable mental health condition. He never complained to treatment providers of problematic anxiety or depression or of other mental health issues or concerns. He had never been referred to mental health treatment. Screens had not been positive for depression or anxiety. There have been emotional symptoms but not a diagnosis. Furthermore, there was no social or occupational impairment as a result of intermittent mild or occasional anxiety or sadness. There was no current or historical psychiatric diagnosis or disability. Like everyone, the Veteran could experience sadness or anxiety or other emotions and sometimes, when thoughts turned to military experiences, he could feel temporarily sad or anxious. However, not all current sadness, anxiety or other experienced or displayed emotion was directly related to or in any way connected to service. If the diagnoses of depression or anxiety had already been conceded, there was a less than 50 percent probability that they were connected to service experiences. As the Veteran lived his life, he encountered situations that understandably caused him anxiety, sadness, anger or happiness, and the military events were but one of the many triggers to feeling. Based on a review of the record, the Board finds that service connection for an innocently acquired psychiatric disorder is not warranted. First, the Board notes that VA treatment records contain notations that the Veteran was prescribed medication in 2010 and 2011 for anxiety and depression, and these along with mood and sleep problems area also were mentioned in the Veteran's VA outpatient reports. In the February 2013 remand, the Board indicated that current diagnoses of anxiety and depression were conceded for the purpose of adjudication. As such, this element of service connection was met. In addition, the Board accepts as credible the description of events during service that the Veteran believed led to his psychiatric symptomatology. At issue, then, is whether a current diagnosis is related to these events in service. The Board notes that lay persons are competent to provide opinions regarding etiology and diagnosis in many cases. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). However, the Board finds that the opinion of a medical professional, with the corresponding education, experience, and expertise, is more probative than the Veteran's lay statements alone. Furthermore, the Veteran's assertions all relate his in-service incidents with PTSD, a diagnosis which is not shown by record. Even the Veteran stated during his hearing that he had not been diagnosed as having PTSD. Therefore, the Board finds that the opinion of the VA examiner is the most probative evidence of record on the question of whether the Veteran has an acquired psychiatric disorder that is related to service. The examiner concluded that the Veteran did not have a diagnosable psychiatric disability, and therefore, there was no disorder that could be related to service. Nevertheless, the examiner indicated in her March 2013 addendum that, even if diagnoses of depression and anxiety were conceded by VA, they were less likely than not related to service. When the Veteran thought of war, it triggered feelings of sadness or anxiety. However, neither these thoughts of war nor any other incident that occurred during service caused a currently diagnosed disability. While the Veteran may have disabilities as conceded by VA, his service led only to feelings of sadness or anger, and a diagnosed acquired psychiatric disorder was not caused or aggravated by service. The VA examiner's opinion is adequate and reasoned. She reviewed the claims file and provided a rationale for her conclusion that is based upon the evidence of record as well as an interview with the Veteran. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). For the foregoing reasons, the preponderance of the evidence is against the claim for service connection for an innocently acquired psychiatric disorder, to include PTSD. The benefit-of-the-doubt doctrine is therefore not for application, and the claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). ORDER Service connection for an innocently acquired psychiatric disorder, to include PTSD, is denied. REMAND The Board finds that additional development is needed prior to final adjudication of the Veteran's claim for a stomach disorder. In the February 2013 remand, the Board directed the RO to obtain an opinion with regard to whether GERD, which was diagnosed recently in the record, was incurred in or aggravated by service, to include whether it was due to asbestos exposure, ill-fitting dentures, and/or a right ankle disability. The opinion obtained only addressed whether hiatal hernia was related to service. Since this specific question from the Board's remand was not addressed, and VA has an obligation to provide the Veteran with an adequate examination once one is provided, a remand is necessary in this matter. See Stegall v. West, 11 Vet. App. 268 (1998); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Accordingly, this remaining matter is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO should take all indicated action to forward the claims file to the VA examiner who prepared the April 2012 VA examination report and March 2013 addendum for the purpose of obtaining an addendum to an additional opinion. The examiner should opine whether it is at least as likely as not (i.e. there is a 50 percent or greater probability) that the Veteran's currently diagnosed GERD is due to any event or incident of the Veteran's period of active service or otherwise was caused or aggravated by his service-connected right ankle disability. If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation, consistent with 38 C.F.R. § 3.310 (as revised effective in October 2006). If the prior examiner is not available, or is unable to provide the requested opinion without examining the Veteran, the RO must arrange for the Veteran to undergo a VA gastrointestinal examination to obtain an opinion responsive to the questions posed hereinabove. All indicated tests should be accomplished, and all clinical findings reported in detail. The claims file should be made available to the examiner for review prior to entering any opinions, and the examination report should include discussion of the Veteran's documented medical history and assertions. 2. After completing all indicated development, the RO should readjudicate the claim remaining on appeal in light of all the evidence of record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a fully responsive Supplemental Statement of the case and afforded a reasonable opportunity for response. Thereinafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs