Citation Nr: 1323970 Decision Date: 07/29/13 Archive Date: 08/07/13 DOCKET NO. 09-05 817 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a psychiatric disorder other than posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for PTSD. 3. Entitlement to a temporary total rating for hospitalization secondary to PTSD. 4. Entitlement to an earlier effective date for the award of additional benefits for dependents. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD P. Childers, Counsel INTRODUCTION The Veteran served on active duty from September 1984 to June 1988, and from June 1989 to June 1993. She is not a Persian Gulf War Veteran. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions in August 2007 and October 2008, and on appeal from a January administrative decision, by a Department of Veterans Affairs (VA) Regional Office (RO). The August 2007 rating decision denied service connection for psychiatric disability. The October 2008 rating decision denied a temporary total rating based on inpatient hospitalization for psychiatric treatment. The January 2010 administrative decision awarded additional benefits, including additional compensation, for dependents. In May 2013 the Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing in Montgomery, Alabama. A transcript of the hearing is in the claims file. The issues of service connection for PTSD; entitlement to a temporary total rating; and an earlier effective date for the award of additional benefits for dependents are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the appellant if further action is required. FINDING OF FACT A non-PTSD psychiatric disorder was not manifested in, or shown related to, active military service. CONCLUSION OF LAW A non-PTSD psychiatric disorder was not incurred in or aggravated by active duty service, and may not be presumed to have been incurred during active duty service. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. § 3.6(a), 3.7(r), 3.303, 3.384 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has a duty to notify the Veteran of the information and evidence necessary to substantiate the claims submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The notice requirements were accomplished in a letter dated in August 2008. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006). This letter informed the Veteran of the criteria for service connection; of the information and evidence needed to substantiate his claim; and of his and VA's respective duties for obtaining evidence. The Veteran was also apprised and of how VA determines disability ratings and effective dates. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO also provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as prescribed by the facts and circumstances in this case. The Veteran's service treatment records (including those compiled during her tour of duty in Nuernberg, Germany) are in the claims file. Her VA treatment records have also been associated with the claims file. In addition, the Veteran testified regarding her claim before the undersigned Veterans Law Judge in a May 2013 Travel Board hearing. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the 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. During the 2013 Board hearing the Veteran was ably assisted by an accredited representative from the American Legion. The representative, and the Veterans Law Judge, asked questions to ascertain the nature and onset of the Veteran's psychiatric disorder(s). No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or the representative. The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through her testimony, demonstrated that she had actual knowledge of the elements necessary to substantiate her claim for service connection. Additionally, the Veteran demonstrated actual knowledge of what was needed for the claim to be granted by the questioning pursued by her representative at the hearing. Moreover, neither the representative nor the Veteran has suggested any deficiency in the conduct of the hearing. Therefore, 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). The Board notes that the Veteran testified, during her 2013 Board hearing, that she has received medical care from VA since 1993 (Transcript, pp. 10-11); however, as she further testified that this was for migraine headaches, and as there is absolutely no indication of any mental health care prior to 2005, the Board finds no need to delay this decision pending acquisition of those records. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran). The Board also notes that the Veteran was not afforded a VA examination in this matter (see McLendon v. Nicholson, 20 Vet. App. 79 (2006)); however, as there was no complaint or diagnosis of a psychiatric disorder during active duty service and no contemporaneously recorded complaint or diagnosis of any non-PTSD symptoms for more than 10 years after active duty service; as the Veteran underwent a complete psychiatric examination by a VA psychiatrist in December 2005 (which included review and discussion of the Veteran's entire mental health history, and an opinion regarding relationship to service); and as there is no competent evidence of a nexus between any currently diagnosed non-PTSD disorders and service; remand for a VA Compensation and Pension examination is not needed because the evidence is adequate for a decision in this matter. See, e.g., Ardison v. Brown, 6 Vet. App. 405, 407 (1994)) (providing, basically, that a medical [examination] is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). Merits This decision concerns the issue of service connection for a non-PTSD psychiatric disorder. During her 2013 Board hearing, the Veteran suggested that her psychiatric symptoms may have been misdiagnosed as migraine headaches during service. See Board Hearing Transcript, pp. 4-5. She has been service-connected for migraine headaches since her June 2003 separation from active duty service; currently as 50 percent disabling. Service treatment records contain no record of any complaints, diagnosis, or treatment for any emotional/psychiatric problems. Quite the contrary, in the report of a June 1990 consult done pursuant to gastrointestinal complaints, a military psychiatrist concluded that there was "no apparent psych[iatric] disorder." In December 2005 the Veteran was examined, at the request of her VA primary care provider, by a VA psychiatrist, who reviewed the Veteran's complete mental health history and elicited the Veteran's complaints and symptoms. Axis I diagnoses were PTSD; bipolar disorder type II; underlying dysthymia; and superimposed pain disorder and mood disorder due to chronic pain. In April 2008, the Veteran was hospitalized for psychiatric treatment and released from inpatient care in June 2008. The Veteran's present non-PTSD mental health problems include recurrent major depressive disorder with psychotic behavior; agoraphobia; mood disorder. See VA Health Record, Active Problems. Principles of Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Disorders diagnosed after discharge may also be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d). Where a veteran served continuously for ninety (90) days or more during a period of war or during peacetime service after December 31, 1946, and psychosis becomes manifest to a degree of ten percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 C.F.R. §§ 3.307, 3.309. Congenital or developmental defects such as personality disorder are not diseases or injuries within the meaning of applicable legislation concerning service connection. 38 C.F.R. §§ 3.303(c), 4.9, 4.127; see also VAOPGCPREC 82-90. However, if superimposed injury or disease occurred, the resultant disability might be service connected. Discussion & Analysis The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on her 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). In deciding a claim for service connection on the merits, the Board must assess the credibility and weight of all evidence, including the Veteran's statements and 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. See Owens v. Brown, 7 Vet. App. 429 (1995) (it is the Board's fundamental responsibility to evaluate the probative value of all medical and lay evidence); see also Evans v. West, 12 Vet. App. 22, 30 (1998) (providing that it is the responsibility of the Board to weigh the evidence and determine where to give credit and where to withhold the same). Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. See Cartwright v. Derwinski, 2 Vet. App. 24, 26 (1991); Hatlestad v. Derwinski, 1 Vet. App. 164, 169-70 (1991); Gilbert v. Derwinski, 1 Vet. App. 49, 59 (1990). Preliminarily, the Board notes that with regard to the diagnosis of a personality disorder that was made during the appeal period, it is not a disease or injury within the meaning of applicable legislation concerning service connection. 38 C.F.R. §§ 3.303(c), 4.9, 4.127; see also VAOPGCPREC 82-90. There is also no evidence in service treatment records of any superimposed injury or disease occurred, so service connection for personality disorder is not warranted. In fact, there is no record (including complaint, diagnosis, or treatment) of a psychiatric disorder whatsoever during active military service; and no record of psychosis in the year after active military service, so service connection based on in-service incurrence, or under the presumptive provisions is not warranted. There is also no competent evidence that relates a current non-PTSD psychiatric disorder to active military service. 38 C.F.R. § 3.303(d). While VA medical records dating from December 2005 show treatment for various psychiatric illnesses, this is more than ten years after the Veteran's 1993 separation from active duty service. The Board finds this lapse in time to be highly probative evidence against the claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (a significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim. Moreover, there is no probative opinion evidence in support of the claim. To the extent that the Veteran herself propounds that her non-PTSD psychiatric disorder(s) began during, or is related to, active military service, the Board is mindful that under certain circumstances, a layperson is competent to identify a simple medical condition. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (noting, in a footnote, that sometimes a layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer). However, this is not the case here, as the diagnosis of a psychiatric disorder requires the application of specialized education and training. And, it has not been established that the Veteran is otherwise qualified through specialized education, training, or experience to offer a medical diagnosis or an opinion on medical causation. The Veteran, as a lay person, is therefore not competent to offer a medical diagnosis or an opinion that any current psychiatric disorder is related to active military service. Accordingly, to the extent that the Veteran statements are offered as evidence of a diagnosis or incurrence during active military service, the statements are not competent evidence and the statements necessarily are excluded as evidence in support of the claim. This leaves the record simply showing the presence of multiple non psychosis psychiatric disorders long after active military service. This is not a basis upon which to establish service connection. Accordingly, the weight of the evidence is against the claim of service connection for a non-PTSD psychiatric disorder and the benefit of the doubt standard of proof does not apply. Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C. § 5107(b)); 38 C.F.R. § 3.102. In so finding, the Board again notes that while there is lay evidence of VA treatment records dated in 1993 and 1994 (see Board Hearing Transcript, pp. 10-11), that has not been associated with the claims file. However, there is no need to delay issuance of this decision pending acquisition of those records as there is absolutely no allegation of any mental health care prior to 2005. Soyini, 1 Vet. App. 540, 546 (providing, in essence, that remand is not warranted in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran). Additionally, as the Veteran has already undergone an intensive psychiatric examination by a VA psychiatrist (who reviewed the Veteran's entire mental health history and gratuitously opined regarding service connection), and as this evidence is adequate for a decision in this matter, remand for another psychiatric examination is not needed. See Ardison, 6 Vet. App. 405, 407 (providing, basically, that a medical [examination] is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). ORDER Service connection for a non-PTSD psychiatric disorder is denied. REMAND With regard to the claim for service connection for PTSD, the Veteran reports that a fellow soldier with whom she was pulling guard duty during icy weather/conditions on a U.S. Army post in Nuernberg, Germany, in January 1991, was killed by an approaching U.S. military truck. She adds that both she, and the other soldier, were pregnant at the time of that incident. She recalls the date because she says she had received orders to the Persian Gulf war zone but was not sent due to her pregnancy. In December 2005, the Veteran was evaluated by a VA psychiatrist, who returned an axis I diagnosis of chronic, severe PTSD "related to military experience in Germany." VA treatment records dated since December 2005 continue to reflect a diagnosis of, and show treatment for, chronic PTSD related to military experience in Germany. The medical evidence of record consequently meets the requirements of 38 C.F.R. § 3.304(f). However, the alleged in-service stressor event has not been verified. In October 2007, the U. S. Army & Joint Services Records Research Center (JSRRC) advised the RO to contact the U.S. Army Crime Records Center (USACRC) regarding the alleged in-service stressor. In a letter to the Director of the USACRC dated in May 2010, the RO requested copies of any investigative reports related to the incident. In June 2010, the USACRC responded that the RO's request did not contain sufficient information to enable a proper search. A subsequent request was not made by the RO. On review of the RO's May 2010 request, the Board notes that the RO did not include the approximate date of the incident (in or around January 1991), or advise the USACRC that the Veteran had served under two different surnames in Germany. The request also did not advise that the incident happened at one of the side gates on the U.S. Army post (Fuerth Army Base) in Nuernberg, Germany, or that the slain female soldier was hit by a U.S. military truck as it approached the post's gate. Remand for a new request for records from the USACRC is warranted. 38 C.F.R. § 3.159(c)(2). Also, since the claims file is being returned, a request should be made for VA treatment records dated in 1993 and 1994. See Board Hearing Transcript, p. 11. In addition to the foregoing, in an administrative decision dated in January 2010, the RO awarded additional benefits, including additional compensation, for dependents. In March 2010 the Veteran filed a notice of disagreement regarding the effective date of the award(s). Unfortunately, no further action was taken by the RO with regard to the Veteran's timely filed notice of disagreement. In accordance with case law, this issue is remanded for appropriate action. Manlincon v. West, 12 Vet. App. 238 (1999) (Where a notice of disagreement has been filed with regard to an issue, and a statement of the case has not been issued, the appropriate Board action is to remand the issue to the RO for issuance of a statement of the case). Accordingly, the case is REMANDED for the following action: 1. Send a new request to the U.S. Army Crime Records Center for investigative records related to the death of a female soldier while on guard duty at a post gate at Fuerth Army Base in Nuernberg, Germany in January 1991. At the time, the Veteran was assigned to the 45th Ordnance Detachment (although the victim may not have been assigned to that unit). It should be noted in the request for information that the victim was reportedly hit by a U.S. Military vehicle as it approached the post gate where the Veteran and the victim were standing guard. She reports that because of the transfer of personnel to the Persian Gulf War Theater of operations, they were serving as gate guards, outside their primary MOS. 2. Obtain the Veteran's VA treatment records dated in 1993 and 1994, and associate these records with the claims file. 3. Thereafter, make a formal finding regarding the alleged in-service stressor. 4. Furnish the Veteran a statement of the case on the issue of an earlier effective date for the award of additional benefits for dependents set out in the January 2010 administrative decision. The Veteran must be informed that in order to perfect an appeal of the issue, she must timely file a substantive appeal, following the issuance of the statement of the case. 5. After completion of all of the above and any other development deemed necessary, re-adjudicate the claims for service connection for PTSD and the claim for a temporary total rating based on hospitalization for PTSD. If any benefit sought remains denied, provide the Veteran and her representative a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). ______________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs