Citation Nr: 1325002 Decision Date: 08/07/13 Archive Date: 08/13/13 DOCKET NO. 09-06 707 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas 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. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Edwards, Associate Counsel INTRODUCTION The Veteran had active service from January 1967 to January 1969. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a February 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran requested a hearing before the Board. The requested hearing was scheduled in February 2013; however, the Veteran failed to appear and as such, his hearing request is deemed withdrawn. 38 C.F.R. § 20.704(d). This appeal is expanded from the Veteran's original claim to include all acquired psychiatric disorders. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (finding a claimant without medical expertise cannot be expected to precisely delineate the diagnosis of his mental illness). FINDINGS OF FACT 1. A probative diagnosis of PTSD, which conforms to the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV), is not demonstrated by the evidence of record. 2. The Veteran's acquired psychiatric disorders, other than PTSD, are not causally or etiologically due to service. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for PTSD are not met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). 2. The criteria for establishing entitlement to service connection for an acquired psychiatric disorder, other than PTSD, are not met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist As set forth in the Veterans Claims Assistance Act of 2000 (VCAA), the Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012). Under the VCAA, when VA receives a claim, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim; that VA will seeks to provide; and that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the regional office. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice requirements of the VCAA 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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. In the present case, the VCAA duty to notify was satisfied by a letter sent to the Veteran in December 2006 that fully addressed the entire notice element and was sent prior to the initial regional office decision in this matter. The letter informed him of what evidence was required to substantiate his claim (both for PTSD and for service connection in general) and of his and the VA's respective duties for obtaining evidence. There is no allegation from the Veteran that he has any evidence in his possession that is needed for full and fair adjudication of this claim, and the Board finds that the notification requirements of the VCAA have been satisfied as to timing and content. To fulfill Dingess requirements, in December 2006, the regional office provided the Veteran with notice as to what type of information and evidence was needed to establish a disability rating and the possible effective date of the benefits. The regional office successfully completed the notice requirements with respect to the issue on appeal. Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Additionally, VA has a duty to assist the Veteran in claim development. This includes assisting in the procurement of service treatment and hospitalization records and pertinent medical records, as well as providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The regional office has obtained service treatment records, VA outpatient medical records, and VA medical opinions and examinations pertinent to the issue on appeal. Virtual VA records have been reviewed. Therefore, the available medical evidence and records have been obtained in order to make an adequate determination. Neither the Veteran nor his representative has identified any additional existing evidence that has not been obtained or is necessary for a fair adjudication of the claim. The VA's duty to assist in the development of the claim is complete, and no further notice or assistance to the Veteran is required to fulfill the duty. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, Smith v. Principi, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). II. Entitlement to Service Connection for PTSD The Veteran has claimed service connection for PTSD and, more generally, for a psychiatric disorder. He asserts that he was in constant fear of being killed while in Vietnam as he was close to heavy shelling. See January 2007 VA Form 21-0781. Personnel records indicate the Veteran served in Vietnam from June 1967 to June 1968 and was part of the Vietnam Counter Offensive Phase II and III. There are particular requirements for establishing PTSD in 38 C.F.R. § 3.304(f), which take precedence over the general requirements for establishing service connection in 38 C.F.R. § 3.303. See Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). Thus, the issues of entitlement to service connection for a psychiatric disorder other than PTSD and entitlement to service connection for PTSD are addressed separately in this decision. Establishment of service connection for PTSD requires: (1) medical evidence diagnosing PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). Furthermore, in determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In addition, the Board notes that VA has recently amended its adjudication regulations governing service connection for posttraumatic stress disorder by liberalizing, in certain circumstances, the evidentiary standard for establishing the required in-service stressor. Significantly, 38 C.F.R. § 4.125(a) requires that a diagnosis of a mental disorder conform to the Diagnostic and Statistical Manual, Fourth Edition (DSM-IV). A necessary element for establishing any service connection claim, including one for PTSD, is the existence of a current disability. See Degmetich v. Brown, 104 F.3d 1328 (1997) (holding that section 1110 of the statute requires the existence of a present disability for VA compensation purposes); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). The presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board's adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran filed his claim for service connection for PTSD in July 2005. The claim of service connection for PTSD must be denied because the preponderance of the evidence is against a probative diagnosis of PTSD throughout the claims period. The service treatment records show that the Veteran's enlistment examination from September 1966 revealed no psychiatric abnormalities. The service treatment records also contain no complaint, symptoms, or diagnoses of a psychiatric disorder. The Veteran's October 1968 separation examination revealed no psychiatric abnormalities. Throughout the period of the claim, post-service records include psychiatric treatment records. These records contain multiple diagnoses of several psychiatric disabilities other than PTSD, including major depression and depression, not otherwise specified (NOS). Significantly, however, the Board notes that during the period of the claim, a diagnosis of PTSD was not rendered. The U.S. Court of Appeals for Veterans Claims recently issued a decision in Romanowsky v. Shinseki, 2013 WL 3455655(July 10, 2013), that found that the Board erred when it did not consider whether the appellant's adjustment disorder, diagnosed prior to the claim period, was extant at the time he filed his claim but had resolved by the time of the later examination. Therefore, the Board will also look to the evidence prior to the claim period. See McClain, 21 Vet. App. at 321 (noting that the "current disability" required for service connection includes a disability at the time of filing or during the pendency of a claim); but see Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (stating that "simply because [the veteran] had a disease or injury while on active service" was insufficient to obtain benefits "[i]n the absence of proof of a present disability"). The Board acknowledges that there is evidence of a diagnosis of PTSD prior to the filing of the claim. In this regard, Vet Center treatment records reflect a diagnosis of PTSD at intake in September 2004, noting that the Veteran endorsed "17 out of 17 symptoms of PTSD." This intake report was signed by the social worker and a Ph.D. Similarly, in October 2004 and November 2004, the social worker through the Vet Center noted that the Veteran was diagnosed with PTSD. However, according to his discharge summary in November 2004, wherein it was noted that the Veteran was seen at the Mental Health Clinic and reported that "does not meet criteria A." Even though the social worker's assessment still included the diagnosis of PTSD, it was expressly noted that the Veteran "may file a claim for [service connection for] depression if desired. In reviewing the Mental Health Clinic records, a September 2004 report of psychological evaluation was prepared "which includes extensive psychological testing, interview, and review of medical records." After a review of medical records and psychological testing, it was noted that the data, taken as a whole, did not support a diagnosis of PTSD and that depression was the Veteran's most prominent issue. In explanation, it was noted that his traumatic memories center of the loss of his father in WWI and the return of his body in a casket that was placed in the Veteran's room. Significantly, it was noted that the Trauma Symptom Inventory was unremarkable and that "[t]he individual's testing profile does not support a diagnosis of PTSD." Thus, notwithstanding the Veteran's reported stressors, the impression rendered was of depression, not otherwise specified, and a GAF score of 55 was assessed. This report was signed by a Ph.D, clinical psychologist of the PTSD Clinic, who had agreed with another VA doctor's assessment that depression was the Veteran's most prominent issue. The Board recognizes that a "clear" diagnosis of PTSD is not required. Rather, a diagnosis of PTSD must be established in accordance with 38 C.F.R. § 4.125(a), which simply mandates that, for VA purposes, all mental disorder diagnoses must conform to the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV). See 38 C.F.R. § 3.304(f). However, the Board observes that, for purposes of establishing service connection claim for PTSD, clear (that is, unequivocal) diagnosis of PTSD by mental-health professional must be presumed (unless evidence shows to contrary) to have been made in accordance with applicable Diagnostic and Statistical Manual of Mental Disorders (DSM) criteria as to both adequacy of symptomatology and sufficiency of in-service stressor. 38 C.F.R. § 3.304(f). See Cohen v. Brown, 10 Vet. App. 128, 140 (1997). As indicated above, however, the September 2004 report of psychological evaluation is significant evidence that goes against the Vet Center diagnoses of PTSD. Moreover, the Vet Center's discharge report of November 2004 clearly denotes the assessment of the Mental Health Clinic that criterion A for a diagnosis was not present and even suggested that the Veteran could file a claim for service connection for depression. Thus, the Cohen presumption does not apply in this case. The Board has the authority to discount the weight and probative value of evidence in light of its inherent characteristics and its relationship to other items of evidence. Madden, 125 F.3d 1447. To be probative a medical opinion or examination report must contain (1) a clear conclusion, (2) be based on supporting data, and (3) set forth a reasoned medical explanation connecting the two. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Here, the Board finds the September 2004 report of psychological evaluation to be the most probative evidence as to whether the Veteran's psychological symptoms are indicative of a diagnosis of PTSD. The evaluation report included a review of records, an interview with the Veteran, and the results various psychological tests, which was not included in the Vet Center intake/treatment records. Moreover, even though the Vet Center intake assessment was signed by a Ph.D., the ongoing assessments of PTSD through the Vet Center were provided by a Social Worker, whereas the results of the September 2004 report of psychological evaluation were confirmed by two Ph.Ds. Given the fact that the September 2004 report of psychological evaluation included extensive psychological testing and was endorsed by two doctors, the Board finds that the September 2004 assessment, which found that the Veteran's testing profile and data, as a whole, did not support a diagnosis of PTSD, to be the more probative than the Vet Center assessments. Therefore, the Board concludes that, notwithstanding the 2004 diagnoses of PTSD of record from the Vet Center, the weight of the evidence establishes that the Veteran did not in fact meet the criteria for a diagnosis of PTSD under the DSM at this time. Therefore, even considering the pre-claim evidence under Romanowsky, the evidence is nonetheless insufficient to demonstrate a current disability of PTSD in this case. In addition, the Board finds it significant that the post-service treatment records and April 2010 VA examination report are absent for a diagnosis of PTSD, which further supports the conclusion that the Veteran did not have a disability of PTSD throughout the claim period. Here, like the the September 2004 clinical psychologist, the April 2010 VA examiner relied on a complete and thorough review of the Veteran's record, including the lay and medical evidence, as contained in the claims file, and the report was the product of a very thorough interview and examination of the Veteran and review all of the evidence pertinent to the Veteran's account of his experiences during service. The April 2010 VA examiner provided Axis I diagnoses of depressive disorder, not otherwise specified, and alcohol dependence. Notably absent from this report is an assessment or mention of a current PTSD diagnosis. The Board has also considered the Veteran's lay statements indicating that he has PTSD. The Veteran is competent to testify as to his observations. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). In addition, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). However, unlike disorders that may be observable as to both their incurrence and their cause, such as a dislocated shoulder, the cause of a psychiatric disability is not readily apparent to lay observation, and the Court has held that psychiatric diagnoses are generally the province of medical professionals. See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"). See also Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis). Moreover, even if credible and competent, the Veteran's general lay assertions are outweighed by the specific and reasoned conclusions of the health care professionals who repeatedly diagnosed psychiatric disabilities other than PTSD. See Nieves-Rodriguez, 22 Vet. App. at 304 (most of the probative value of a medical opinion comes from its reasoning; threshold considerations include the qualifications of the person opining). As explained above, the most persuasive and probative evidence of record does not reflect that the Veteran has a diagnosis of PTSD in accordance with the criteria listed in DSM-IV. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993). The evidence indicating diagnoses of PTSD from Vet Center records are found to be less probative because the intake assessment did not appear to conduct extensive diagnostic psychosocial testing on the Veteran before rendering a diagnosis. Thus, given the lack of probative and persuasive value of evidence demonstrating a current disability of PTSD, the evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and regulation. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. Accordingly, for the reasons and bases discussed above, the Board concludes that the preponderance of the evidence is against a PTSD diagnosis in this case. See, e.g., Cohen, 10 Vet. App. at 153 (Chief Judge Nebeker, concurring) (VA adjudicators may reject the claim upon a finding that the preponderance of the evidence is against a PTSD diagnosis). As a consequence, the claim for service connection for PTSD fails on the basis that all three elements for a showing under 38 C.F.R. § 3.304(f) have not been met. Accordingly, service connection for PTSD is denied. III. Entitlement to Service Connection for an Acquired Psychiatric Disorder, Other than PTSD The Board will now discuss whether the Veteran is entitled to service connection for any acquired psychiatric disorders, other than PTSD. Under the relevant laws and regulations, 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. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing entitlement to service connection generally requires evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see 38 C.F.R. § 3.303 (2011) Furthermore, in determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The service treatment records show that the Veteran's enlistment examination from September 1966 revealed no psychiatric abnormalities. The service treatment records also contain no complaint, symptoms, or diagnoses of a psychiatric disorder. The Veteran's October 1968 separation examination revealed no psychiatric abnormalities. The Board notes that the Veteran has received multiple psychiatric disorders diagnoses throughout the claim period, including major depressive disorder and depression, NOS. During an April 2010 VA examination, the Veteran was diagnosed with depressive disorder, NOS. Therefore, the Board finds that the first requirement, a current diagnosis, is met. However, the evidence must also demonstrate a nexus between the present disease and service. Here, the Board finds that the evidence does not indicate a nexus between his current psychiatric disorders and his time in service. During the April 2010 VA examination, the Veteran was diagnosed with depressive disorder, NOS. The examiner opined that it is less likely as not that the Veteran's current depressive disorder was caused by or a result of his military service. The examiner explained that the Veteran reported the initial onset of depressive symptoms as occurring in the context of a marital separation, prior to active duty, although he denied any emotional difficulties on his separation form. The Veteran stated he became involved in mental health treatment in 2004, after becoming distressed when viewing news coverage of caskets with flags draped on them and these scenes reportedly aroused memories associated with his father's casket being returned to the family when he was young. The examiner noted that VA treatment records indicate early losses are a primary contributor to the Veteran's emotional difficulties. The examiner stated that during the interview, the Veteran described his time in Vietnam as stressful but he did not describe any symptoms such as intrusive thoughts that could be expected to precipitate depressed mood. The Board must also consider the Veteran's lay statements indicating that he has a psychiatric disorder as a result of service. As stated previously, the Veteran is competent to testify as to his observations. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). In addition, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, unlike disabilities that may be observable as to both their incurrence and their cause, such as a dislocated shoulder, the cause of a psychiatric disability is not readily apparent to lay observation, and the Court has held that psychiatric diagnoses are generally the province of medical professionals. See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"). See also Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis). Moreover, even if credible and competent, the Veteran's general lay assertions are outweighed by the specific and reasoned conclusions of the health care professionals who have asserted his disorder is not a result of service. Nieves-Rodriguez, 22 Vet. App. at 304 (most of the probative value of a medical opinion comes from its reasoning; threshold considerations include the qualifications of the person opining). As a result, to date, there is no competent evidence that the Veteran's psychiatric disorder, other than PTSD, is causally or etiologically due to service. The only medical opinion, to date, weighs against the claim. As the preponderance of the evidence indicates that the Veteran's psychiatric disorders are not due to service, the claim for service connection for an acquired psychiatric disorder, other than PTSD, must therefore be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Ortiz v. Principi, 274 F.3d 1361, 1366 (Fed. Cir. 2001). ORDER Entitlement to service connection for PTSD is denied. Entitlement to service connection for an acquired psychiatric disorder, other than PTSD, is denied. ____________________________________________ K. GIELOW Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs