Citation Nr: 1324507	
Decision Date: 08/01/13    Archive Date: 08/13/13

DOCKET NO.  07-28 838	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUES

1.  Entitlement to service connection for posttraumatic stress disorder (PTSD).

2.  Entitlement to service connection for an  acquired psychiatric disorder (other than PTSD), currently diagnosed as alcohol dependence and depressive disorder.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

R. Dodd, Associate Counsel




INTRODUCTION

The Veteran served on active duty for training (ACDUTRA) from August 1978 to December 1978, on active duty from December 1990 to July 1991, and had additional Reserve service in the Army National Guard. 

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that denied the Veteran's claim for service connection for PTSD.

The Board notes that it has recharacterized the issue regarding a psychiatric disorder to exclude PTSD, as there are no findings that support such diagnosis, and include non-PTSD psychiatric disabilities, the presence of which is shown by the evidence of record.  The RO only adjudicated the issue of PTSD without consideration of any other non-PTSD psychiatric disabilities.  However, the scope of a psychiatric disability claim includes any disability that may reasonably be encompassed by the claimant's description of that claim, reported symptoms, and other information of record.  Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009).  Here, the Veteran initially filed a claim for PTSD and his VA examination shows a diagnosis of alcohol dependence and depressive disorder.  Thus, the Board finds that the issues on appeal includes all diagnosed psychiatric disabilities.  Therefore, the issue on appeal has been recharacterized to reflect a broad interpretation of the Veteran's claim for service connection.

In February 2008, the Veteran requested a hearing before a member of the Board at the RO.  A Travel Board hearing was scheduled for November 6, 2008; however the Veteran failed to attend.  The Veteran has not provided good cause for the failure to attend and has not requested an additional hearing.  As such, the Board considers his hearing request withdrawn.  38 C.F.R. § 20.704 (2012). 

This appeal was previously before the Board and the Board remanded the claim in January 2011 and February 2012 for additional development.  That development having been completed, this case is once again before the Board.

A review of the Virtual VA paperless claims processing system revealed no further records pertinent to the present appeal.

The issue of service connection for an acquired psychiatric disorder (other than PTSD), currently diagnosed as alcohol dependence and depressive disorder, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDING OF FACT

The Veteran does not have PTSD.


CONCLUSION OF LAW

PTSD was not incurred in or aggravated by service.  38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 4.125 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

VCAA

Under the Veterans Claims Assistance Act of 2000 (VCAA), 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 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).

Proper notice from VA must inform the claimant of any information and medical or lay 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 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002).  This notice must be provided prior to an initial RO decision on a claim.  Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112, 119   (2004).  VCAA notice requirements apply to all five elements of a service connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006).

Defective timing or content of VCAA notice is not prejudicial to a claimant if the error does not affect the essential fairness of the adjudication, such as where (1) the claimant demonstrates actual knowledge of the content of the required notice; (2) a reasonable person could be expected to understand from the notice what was needed; or (3) a benefit could not have been awarded as a matter of law.  Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir. 2007), rev'd on other grounds, Shinseki v. Sanders/Simmons, 556 U.S. (2009).  Defective timing may be cured by a fully compliant notice letter followed by a readjudication of the claim.  Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

Here, VA's duty to notify has been satisfied. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  The RO informed the Veteran of VA's duty to assist him in the development of his claim in a letter dated October 2006, that contained all of the required notice.

VA's duty to assist the Veteran has also been satisfied.  38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(c)(1)-(3).  The Veteran's service treatment records (STRs) and VA treatment records have been obtained and associated with the claims file.  The duty to assist also includes making as many requests as are necessary to obtain relevant records from a Federal department or agency, including, but not limited to, VA medical records and relevant Social Security Administration (SSA) records.  38 C.F.R. § 3.159(c)(2); Golz v. Shinseki, 590 F.3d 1317, 1321-23 (Fed. Cir. 2010).  Additionally, VA provided the Veteran with a medical examination that was adequate because the examiners reviewed the claims file, took a full medical history, conducted the appropriate diagnostic testing, and provided a rationale for the ultimate medical opinion.  38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4).  There is no indication in the record that additional evidence relevant to the issue decided herein is available and not part of the claims file.  See Pelegrini, 18 Vet. App. at 121-22.  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, 20 Vet. App. 537, 542-43 (2006), aff'd, Mayfield v. Nicholson, 499 F.3d 1317 (2007); see also Dingess/Hartman, 19 Vet. App. at 486.

Legal Criteria

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 military service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). 

Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. 

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology.  Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999).  Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b).

In relevant part, 38 U.S.C. § 1154(a)  requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits.  Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional."  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007). 

In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis.  Id. at 1376-77; see also Buchanan v. Nicholson, 451 F .3d 1331, 1337 (Fed.Cir.2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept 14, 2009). 

"Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology."  Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991).  Once evidence is determined to be competent, the Board must determine whether such evidence is also credible.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted").  

Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection.  The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid.  38 C.F.R. § 3.303(d). 

A disorder may be service connected if the evidence of record, regardless of its date, shows that the veteran had a chronic disorder in service or during an applicable presumptive period, and that the veteran still has such a disorder.  38 C.F.R. § 3.303(b); Savage, 10 Vet. App. at 494-95.

In addition to the requirements referenced in the legal criteria above, service connection for PTSD also requires: (1) medical evidence establishing a diagnosis of the disorder; (2) credible supporting evidence that the claimed in-service stressor occurred; and, (3) a link established by medical evidence, between current symptoms and an in-service stressor.  38 C.F.R. § 3.304(f).  The PTSD diagnosis must be made in accordance with the criteria of Diagnostic and Statistical Manual of Mental Disorders (DSM-IV).  38 C.F.R. § 4.125(a).  There are several different avenues for substantiating an in-service stressor: (1) where PTSD is diagnosed during service; (2) where the Veteran engaged in combat with the enemy; (3) where the Veteran was a prisoner-of-war; (4) where there was an in-service personal assault; (5) where the alleged stressor has been verified; and (5) where there are lay statements regarding the stressor that is related to a fear of hostile military or terrorist activity. 38 C.F.R. § 3.304(f)(1)-(4); Stressor Determinations, 75 Fed. Reg. 39,843, 39,852.  The procedures and regulations governing each avenue are slightly different. 

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107(b).

Analysis

Here, the Veteran has alleged a psychiatric disorder, including PTSD, due to the following stressors: 1) witnessing a Post Exchange get hit by a scud missile attack, killing 150 people and 2) witnessing a man on fire after his tank had been attacked.   The evidence of record does not show, and the Veteran has not alleged, that he participated in combat with the enemy, that he was a prisoner of war, or that he was subject to personal assault.  However, the Veteran's stressors are shown to be related to a fear of hostile military or terrorist activity.  Accordingly, the Veteran's stressors were conceded.

A review of the Veteran's STRs was absent for a discussion of treatment or diagnoses of PTSD or any acquired psychiatric disorder.  However, the Veteran's claims file contains statements to the effect that the Veteran witnessed engagements with the enemy during service to include, small arms, rockets, and missiles.  The Veteran also complained of current symptoms of flashbacks, anger, and sleep disturbance.

The Veteran was provided with a VA psychiatric examination on March 2012.  At the examination, the examiner noted the Veteran's history of treatment for alcohol abuse and depression.  It was noted that the Veteran has never been provided with a diagnosis of PTSD.  The Veteran reported symptoms of depressed mood, anxiety, chronic sleep impairment, mild memory loss, impairment of short and long term memory, speech that is intermittently illogical, obscure, or irrelevant, and disturbances in motivation or mood.   The Veteran reported the stressors of witnessing a post exchange get hit by a scud missile attack, killing 150 people and witnessing a man on fire after his tank had been attacked.  The examiner stated that these stressors were adequate to support a diagnosis of PTSD and that they were  related to the Veteran's fear of hostile military or terrorist activity.  Upon evaluation of the DSM IV criteria for PTSD, the Veteran only met the element of being exposed to a traumatic event and that it resulted in a feeling of intense fear, helplessness, or horror.   As such, the examiner found that the Veteran did not meet the full criteria for a diagnosis of PTSD.  The Veteran was diagnosed with alcohol dependence and a depressive disorder not otherwise specified and given a Global Assessment of Functioning (GAF) score of 55.  The examiner found occupational and social impairment with reduced reliability and productivity.  The examiner did not discuss the relationship of the Veteran's alcohol dependence or depressive disorder to military service or other psychiatric diagnoses in relation to the symptoms noted on the examination.

After having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for PTSD.  The evidence does not show that there is a current disability, as the medical evidence of record does not show a diagnosis of PTSD.  While the Veteran has presented a valid stressor and he has some of the symptoms associated with PTSD, he does not meet the full requirement for a diagnosis in accordance with the DSM IV. 

A consideration of an acquired psychiatric disorder, other than PTSD, is discussed in further detail in the REMAND portion below. 


ORDER

Entitlement to service connection for PTSD is denied.


REMAND

Although further delay is regrettable, after a review of the record, the Board observes that further development is still required prior to adjudicating the Veteran's claim for a psychiatric disorder.  In particular, 1) the VA outpatient treatment records from Oklahoma should be obtained and 2) the Veteran should be provided with a new VA examination.

First, remand is required to obtain the VA outpatient treatment records referenced in the October 2012 Supplemental Statement of the Case (SSOC). The Board notes that, apart from the March 2012 VA examination, there are no VA outpatient treatment records associated with the paper or electronic claims file.  In the October 2012 SSOC, "Treatment records, VAMC-Oklahoma from May 4, 1999 to July 30 2012," are listed as evidence considered in the decision.

VA's duty to assist includes making as many requests as are necessary to obtain relevant records from a Federal department or agency, including, but not limited to, VA medical records.  38 C.F.R. § 3.159(c)(2) (2012).  Under the law, VA must obtain these records. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992).  As such, the treatment records listed in the October 2012 SSOC must be associated with the claims file.

Second, remand is required to obtain a new VA examination.  At the March 2012 VA examination, the examiner found that the Veteran did not meet the diagnostic criteria for PTSD.  However, alcohol dependence and depressive disorder were diagnosed.  The examiner stated that these two conditions were interrelated and difficult to separate.  It was also stated that the Veteran claims to have started drinking heavily around 1982, when he was 24, and that his alcohol dependence led to the dissolution of his marriage in 1985.  The Veteran stated that he drinks when he is depressed, although the examiner also noted that alcohol consumption can also cause depression.  Although these conditions occurred after the Veteran's initial ACDUTRA as well as during the time period of the Veteran's Army Reserve and National Guard service, to include active service from December 1990 to July 1991, the examiner did not discuss whether there was any etiological relationship between these psychiatric disorders and military service.  Further, it is not indicated whether the examiner had access to the VA outpatient treatment records referenced by the 2012 SSOC.

Where VA provides the Veteran with an examination in a service connection claim, the examination must be adequate.  Barr v. Nicholson, 21 Vet. App. 303, 311   (2007).  An opinion is considered adequate when it is based on consideration of an appellant's prior medical history and examinations and describes the disability in sufficient detail so that the Board's evaluation of the claimed disability is a fully informed one.  Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).  The United States Court of Appeals for Veterans Claims has instructed that, in order for a medical opinion to be given weight, it must be: (1) based upon sufficient facts or data; (2) be the product of reliable principles and methods; and (3) be the result of principles and methods reliably applied to the facts.  See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008).  In the absence of a sufficiently supported medical opinion, VA fails to meet its duty to assist obligations and a remand is necessary to cure this defect.  See 38 C.F.R. § 3.159(c)(4) (2012).   

As such, a new examination is necessary in order to ensure that the examiner has all of the relevant medical evidence to review, to include the Veteran's VA outpatient treatment records.  Further, the examiner must evaluate the Veteran's psychiatric complaints and diagnosis in a broader review in determining a relationship to his military service.  Clemons, 23 Vet. App. at 5.  In so doing, the examiner must take into account the etiologies of all of the Veteran's psychiatric disorders of record, to include alcohol dependence and depressive disorder.  

Additionally, as this case must be remanded for the foregoing reasons, any recent treatment records, including VA records, should also be obtained.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c); Bell, 2 Vet. App. at 613.

Accordingly, the case is REMANDED for the following action:

1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for the disability on appeal.  After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder.  Appropriate efforts must be made to obtain all available VA treatment records,  in particular, records dated from May 4, 1999 to July 30  2012 must be obtained.  All attempts to procure records should be documented in the file.  If the AMC cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file.  The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review.

2. After any new evidence has been associated with the claims file, provide the Veteran a VA psychiatric examination to determine the nature and etiology of all diagnosed psychiatric disorders.  All pertinent symptomatology and findings must be reported in detail.  All indicated tests and studies must be performed. 

The entire claims file (i.e., both the paper claims file and any electronic medical records) should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. If the examiner does not have access to electronic medical records, any such relevant treatment records must be printed and associated with the paper claims file so they can be available to the examiner for review. A complete rationale for any opinion expressed must be included in the examination report. If an opinion cannot be provided without resort to speculation, the examiner must provide supporting rationale for that statement. It is imperative that the examiner offer a detailed analysis for all conclusions and opinions reached supported by specific references to the Veteran's claims file, including the in-service and post-service medical records, and the Veteran's lay assertions. 

For any non-PTSD psychiatric diagnosis is provided, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that such disability had its onset in or is otherwise related to any period of active service. 

3. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012).  In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address.  It must also be indicated whether any notice that was sent was returned as undeliverable.

4. Review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AMC must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998).

5. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated.  If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative.  After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review.

The appellant 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).




______________________________________________
WAYNE M. BRAEUER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs