Citation Nr: 1325446 Decision Date: 08/12/13 Archive Date: 08/16/13 DOCKET NO. 07-30 477 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas THE ISSUE Entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. Schechner, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from August 1972 to July 1977. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision of the Houston, Texas RO. In May 2011, the Board remanded the matter for additional development. FINDING OF FACT The Veteran does not have a diagnosis of PTSD in accordance with DSM-IV based on a corroborated stressor event in service or based on a fear or hostile military or terrorist activity; a chronic psychiatric disability was not manifested in service; a psychosis was not manifested within one year after the Veteran's separation from service; and no diagnosed psychiatric disability is shown to be related to his service. CONCLUSION OF LAW Service connection for a psychiatric disability, to include PTSD, is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any 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); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: 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, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of his claim prior to its initial adjudication. December 2005, February 2006, and May 2011 letters explained the evidence necessary to substantiate the claim, the evidence VA was responsible for providing, and the evidence he was responsible for providing. The May 2011 letter also informed him of disability rating and effective date criteria. He has had ample opportunity to respond/supplement the record and has not alleged that notice in this case was less than adequate. The Veteran's service treatment records (STRs) and service personnel records are associated with his claims file, and pertinent postservice treatment records have been secured. The RO arranged for VA examinations in April 2007 and August 2011. As will be discussed in greater detail below, the Board finds the examination reports/opinions (cumulatively) to be adequate. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Legal Criteria, Factual Background, and Analysis Initially, the Board notes that it has reviewed all of the evidence in the Veteran's claims file and in Virtual VA (VA's electronic data storage system) with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In order to establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) evidence of incurrence or aggravation of a disease or injury in service; and (3) evidence of a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Disorders diagnosed after discharge may still be service connected if all the evidence establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Certain chronic disabilities (to include psychosis) may be service connected on a presumptive basis if manifested to a compensable degree within a specified period of time following discharge from active duty (one year for psychosis). 38 U.S.C.A. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link, or causal nexus, between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). Where the veteran did not engage in combat with the enemy, or the claimed stressors are not related to combat, then the veteran's testimony alone is not sufficient to establish the occurrence of the claimed stressors, and his testimony must be corroborated by credible supporting evidence. Cohen v. Brown, 10 Vet. App. 128 (1997). Service department records must support, and not contradict, the claimant's testimony regarding noncombat stressors. Doran v. Brown, 6 Vet. App. 283 (1994). On July 12, 2010, VA amended its adjudication regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the required in-service stressor. Specifically, the final rule amends 38 C.F.R. § 3.304(f) by redesignating current paragraphs (f)(3) and (f)(4) as paragraphs (f)(4) and (f)(5), respectively, and adding a new paragraph (f)(3) that states: If a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of [PTSD] and that the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire; including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran's STRs are silent for any complaints, findings, treatment, or diagnosis of a psychiatric disability. His service personnel records (SPRs) reflect that he participated in Operation Eagle Pull (the evacuation of Phnom Penh, Cambodia) in April 1975 and Operation Frequent Wind (the evacuation of Saigon) in April to May 1975. His primary MOS in service was Rifleman, and the SPRs indicate he served as a rifleman, a squad leader, and a rifle squad leader. The Board notes that the service records suggest that the Veteran's service likely exposed him to circumstances consistent with an allegation of fear of hostile activity. On March 2005 VA treatment, the Veteran presented to psychiatric triage with gradually worsening anxiety and depression since returning from Vietnam, increasing in the prior few months. He reported symptoms consistent with PTSD related to combat trauma experience during the Vietnam War. He had no prior psychiatric history although it was noted that he sustained a closed head injury in the early 1980s. The assessment was of PTSD. On November 2005 VA psychiatric consultation to evaluate for PTSD, the Veteran reported seeing combat in Vietnam. The diagnoses included chronic PTSD, dementia secondary to head injury, and alcohol dependence in sustained remission. On September 2006 and subsequent VA treatment records, the assessments included PTSD and head trauma status post 1981 assault with traumatic brain injury. On April 2007 VA psychiatric examination, the Veteran reported "frequent combat". He cited recalling more than one incident in which he was required to "clean up" a village after an ambush. He reported a high overall level of traumatic stress exposure based on the frequency and severity of incident exposure. He reported that he sustained a serious head injury in a 1981 assault. He reported that his symptoms began immediately after his return from Vietnam and have been chronic with no full and complete remissions. The examiner stated, "The Veteran meets DSM-IV stressor criteria due to being exposed to combat in Vietnam in the USMC." The examiner opined that the Veteran met some criteria for PTSD symptoms but not others. Specifically, on examination, the Veteran met Criterion A (exposure to traumatic event(s)), Criterion D (persistent symptoms of increased arousal not present before the traumatic event(s)), Criterion E (duration of disturbance more than 1 month), and Criterion F (disturbance causes clinically significant distress or impairment in social, occupational, or other areas of functioning); however, he did not meet Criterion B (persistent re-experience of the trauma) or Criterion C (persistent avoidance of stimuli associated with the traumatic event(s) and numbing of general responsiveness) for symptoms of PTSD. The examiner noted that the Veteran's PTSD symptoms were of regular frequency and mild severity. The only Axis I diagnosis based on a mental status examination was Cognitive Disorder due to head injury. The examiner opined that a diagnosis of PTSD was not proven. The examiner stated that "it is not clear that there would be any way to separate the effects of the trauma in 1981 from the trauma sustained during his military service. Some of the arousal and intrusive memory symptoms existed prior to the accident, but they have become worse. However, he does not display any of the avoidance symptoms required for a diagnosis of PTSD." The examiner stated, "Functional status in terms of industrial impairment is due to the head injury, not PTSD." The examiner also stated, "The head injury is the only discernible cause of impairment. It may be that other problems due to PTSD would emerge if he were not in his current state. There does appear to have been some problem prior to the injury but I was not able to differentiate the two." On August 2011 VA examination, pursuant to the Board's May 2011 remand, the Veteran's diagnosis was dementia in conditions classified elsewhere with behavioral disturbance; the examiner opined that this is a progression of the Veteran's 2007 diagnosis of cognitive disorder due to head injury. No other mental disorder was diagnosed. The diagnoses also included traumatic brain injury (not from service) and cerebrovascular accident. The examiner opined that all of the Veteran's symptoms are attributable to his traumatic brain injury/cerebrovascular accident except hypervigilance, and recurrent and intrusive distressing recollections of events in Vietnam, which are present but not of sufficient severity in the context of his overall dementia with behavioral disturbance to be a focus of clinical intervention. The August 2011 VA examiner opined that the Veteran has dementia in conditions classified elsewhere with behavioral disturbance, and does not have PTSD. The examiner stated that the stressors are irrelevant to the examination because the Veteran's behavioral/psychiatric disturbances are due to his dementia and not to PTSD; he does not currently have a diagnosis of PTSD. The examiner opined that the dementia in conditions classified elsewhere with behavioral disturbance is not related to the Veteran's military service or documented events therein. For rationale, the examiner explained that although the Veteran has two PTSD symptoms, his overall functioning is impaired by his dementia with behavioral disturbance rather than the two PTSD symptoms, and his symptoms are not consistent with PTSD. The Veteran's symptoms on examination were noted to include irritability, impulsivity, perseveration and ongoing yelling of the same things, memory impairment, and oppositional behavior, each due to frontal lobe impairment from his head injury and cerebrovascular accident, and which are not related to PTSD or military service but to brain damage. The examiner noted that the Veteran's family contends that he was different and not the same man when he returned from Vietnam yet opined that his current symptoms are not consistent with PTSD. Regarding any conflicting medical evidence, the examiner opined that the Veteran's current dementia is a progression of the cognitive disorder diagnosed in 2007, and his dementia overshadows any PTSD symptoms present. Social Security Administration (SSA) records reflect that the Veteran became entitled to disability benefits as of January 1982 due to a primary diagnosis of status post head injury with left hemiplegia. The Board also notes that the Veteran receives non-service-connected pension based on a finding he has, permanent and total disability due to organic brain syndrome from trauma sustained postservice (in July 1981). Regarding PTSD, the preponderance of the evidence is against a finding that the Veteran has such disability. While the relaxed evidentiary standards of the revised 38 C.F.R. § 3.304(f)(3) do apply in this case, given the circumstances of the Veteran's service and the nature of his allegations, he has not been assigned a diagnosis of PTSD based on fear of hostile military or terrorist activity. Indeed, both VA examiners opined that the Veteran does not merit a PTSD diagnosis (and identified the symptoms found lacking for such diagnosis, including persistent arousal, re-experiencing, avoidance. The Board notes that many of the Veteran's stressor accounts are simply not credible. "Credibility can be genuinely evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, official plausibility of the testimony, and the consistency of the witness's testimony". The Veteran's accounts of stressors have been inconsistent, and are self-serving. See Pond v. West, 12 Vet. App. 341 (1999). While the circumstances of his service may allow for a finding of fear of hostile military activity nonetheless, examiners have not assigned a diagnosis of PTSD on that basis. As noted above, some of the treatment records do show diagnoses of PTSD. However, such diagnoses are unaccompanied by full findings of the stressors and symptoms supporting the diagnoses, and are therefore of limited probative value, and inadequate for rating purposes. The Board notes that the Veteran was involved in a traumatic event postservice. In summary, while the record does not show that the Veteran engaged in combat with the enemy, there is no evidence of circumstances consistent with the possibility that he may have served in circumstances that may reasonably be found reasonably be found to create a fear of hostile military activity. However, there is no valid diagnosis of PTSD on that basis, as the constellation of symptoms for such diagnosis is not shown. As a threshold legal requirement for establishing service connection for PTSD is not met, service connection for such disability is not warranted. As the record shows diagnoses of psychiatric disabilities other than PTSD, the analysis proceeds to whether any other psychiatric disability diagnosed may be service connected. A chronic acquired psychiatric disability was not noted in service or clinically noted post-service prior to 2005, and service connection for a psychiatric disability on the basis that such disability became manifest in service and persisted is not warranted. As a psychosis is not shown to have been manifested in the first postservice year, the chronic disease presumptive provisions of 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309 do not apply. The Board finds that the April 2007 and August 2011 VA examiners' (cumulative) reports concluding that the Veteran does not have a current psychiatric disability related to service warrant substantial probative weight, as they incorporate findings and statements made by the Veteran throughout the pendency of this claim, and they explain why the complaints and findings do not support a nexus between any diagnosis of a psychiatric disability and the Veteran's service. Simply stated, the Board finds that the service and post-service treatment records, overall, provide evidence against this claim, indicating that the Veteran does not have a current psychiatric disability related to service. More importantly, the more competent evidence of record provides evidence against a finding that any current psychiatric disability was incurred in or caused by the Veteran's active service. Regarding the diagnosis of dementia, the probative evidence of record clearly relates such diagnosis to the traumatic head injury the veteran sustained postservice. Regarding the Veteran's own opinion that he has a psychiatric disability that is due to his service, he is a layperson (with no demonstrated or alleged expertise in determining a medical nexus); does not offer any supporting medical opinion or medical treatise evidence; does not cite to any supporting factual data; and does not offer any explanation of rationale for his opinion. Therefore, his opinion in this matter has no probative value. The Board recognizes that 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), see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2007). That is, competent medical evidence is not necessarily required where the determinative issue in a case involves medical causation or a medical diagnosis. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. Sept. 14, 2009), citing Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In this case, the Veteran is not providing statements related to the diagnosis of a simple disorder or about symptomatology supporting a later diagnosis; instead he is rendering an opinion to the effect that he has a specific mental disability that is related to events in service. A mental disability is not one capable of lay diagnosis, nor is it the type of condition that can be causally related to military service without medical expertise. Davidson, 581 F.3d 1313; Buchanan, 451 F.3d 1331; Jandreau, 492 F.3d 1372. The diagnosis and etiology of a psychiatric disease are matters of medical complexity. The Veteran does not cite to supporting medical opinion or medical literature, and statements as to the diagnosis and etiology of his current psychiatric disability do not constitute probative evidence in the matter. Accordingly, the preponderance of the evidence is against the Veteran's claim of service connection for a variously diagnosed psychiatric disability, to include PTSD, and the appeal in the matter must be denied. ORDER The appeal seeking service connection for a psychiatric disability, to include PTSD, is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs