Citation Nr: 1325614 Decision Date: 08/13/13 Archive Date: 08/16/13 DOCKET NO. 06-26 236 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and major depression. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD K. K. Buckley, Counsel INTRODUCTION The Veteran served on active duty from June 1969 to June 1971. Service in the Republic of Vietnam is shown by the record. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which denied the Veteran's claim. In September 2010, the Veteran presented sworn testimony during a videoconference hearing chaired by the undersigned. A transcript of the hearing has been associated with the Veteran's VA claims file. Relevant to this proceeding, 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) (2012) requires that the individual who chairs a hearing fulfill two duties to comply with the above 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. Here, during the hearing, the undersigned noted the basis of the prior determination and noted the elements that were lacking to substantiate the claim for benefits. In addition, the undersigned sought to identify any pertinent evidence not currently associated with the claims file that might have been overlooked or was outstanding that might substantiate the claim. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), or otherwise identified any prejudice in the conduct of the hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim. As such, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the claim based on the current record. This matter has been the subject of multiple Board remand decisions in the past. Most recently, in a December 2012 Board decision, the claim was remanded for further evidentiary development. A review of the record reflects substantial compliance with the Board's Remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The VA Appeals Management Center (AMC) continued the previous denial in an April 2013 supplemental statement of the case (SSOC). The Veteran's VA claims file has been returned to the Board for further appellate proceedings. In the May 2013 Appellant's Post-Remand Brief, the Veteran, through his representative, asserted entitlement to service connection for ischemic heart disease. This issue has, therefore, been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Accordingly, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran does not have PTSD. 2. The Veteran's currently diagnosed acquired psychiatric disorder, major depression, is not attributable to his military service. CONCLUSION OF LAW The Veteran does not have an acquired psychiatric disorder, to include PTSD and major depression, which is the result of disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131 (West 2002 & West Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Board notes the enactment of the Veterans Claims Assistance Act of 2000 (VCAA); Pub. L. No. 106-475, 114 Stat. 2096 (2000), in November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 200 & West Supp. 2011). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a) (West 2002 & West Supp. 2012); 38 C.F.R. § 3.159(b) (2012). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). (The Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008. See 73 Fed. Reg. 23353-56 (April 30, 2008). The amendments apply to applications for benefits pending before VA on, or filed after, May 30, 2008. The amendments, among other things, removed the notice provision requiring VA to request the claimant to provide any evidence in the claimant's possession that pertains to the claim. See 38 C.F.R. § 3.159(b)(1). The Board finds that all notification and development action needed to arrive at a decision as to the claim on appeal has been accomplished. Through a notice letter dated in October 2004, the RO notified the Veteran of the information and evidence needed to substantiate his claim of service connection. Specifically, he was apprised of what the evidence must show to establish entitlement to the benefit, what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the Veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the Veteran's behalf. An April 2006 letter also notified the Veteran of the criteria for assigning a disability rating and an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Moreover, there is no timing problem as to Dingess notice since, as indicated above, the Veteran's claim was readjudicated in the SSOCs dated in January 2007, January 2010, July 2011, August 2012, and April 2013 following the issuance of the April 2006 letter. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). There is no indication that any additional action is needed to comply with the duty to assist in connection with the issue on appeal. The evidence in the claims file includes VA and private treatment records, statements of the Veteran, Social Security Administration (SSA) records, and service treatment records (STRs). Significantly, the Veteran has not otherwise alleged that there are any outstanding medical records probative of his claim on appeal that need to be obtained. Thus, the Board finds that VA has properly assisted the Veteran in obtaining any relevant evidence. The Veteran was afforded VA examinations in January 2011 and May 2013 with respect to the pending claim. The reports of these examinations are contained in the claims file. These VA examination reports contain sufficient evidence by which to decide the claim; the opinions expressed therein addresses the nature and etiology of the claimed acquired psychiatric disorder. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion). The Board therefore concludes that the January 2011 and May 2013 VA examination reports are adequate. See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). II. Analysis Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. § 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation; lay assertions of medical status do not constitute competent medical evidence for these purposes. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). However, lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). To establish entitlement to service connection for PTSD, the record must contain the following: (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); see also Cohen v. Brown, 10 Vet. App. 128 (1997). The evidence necessary to establish the occurrence of a recognizable stressor during service to support a diagnosis of PTSD will vary depending upon whether a veteran engaged in "combat with the enemy." See Gaines v. West, 11 Vet. App. 353, 359 (1998). If VA determines that a veteran engaged in combat with the enemy and his alleged stressor is combat-related, then his lay testimony or statement is accepted as conclusive evidence of the stressor's occurrence and no further development or corroborative evidence is required provided that such testimony is found to be "satisfactory," i.e., credible and "consistent with circumstances, conditions or hardships of service." See 38 U.S.C.A. 1154(b); 38 C.F.R. 3.304(f)(1); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). If, however, the alleged stressor is not combat-related, then the veteran's lay testimony, in and of itself, is not sufficient to establish the occurrence of the alleged stressor. Instead, the record must contain evidence that corroborates his testimony or statements. See Cohen v. Brown, 10 Vet. App. 128, 147 (1997); Moreau v. Brown, 9 Vet. App. 389, 395 (1996). Here, the Veteran's claimed stressors, cleaning boats after they were involved in firefights and interacting with wounded soldiers in a Naval hospital, are not claimed in relation to combat service. See, e.g., the September 2010 Board hearing transcript. However, the Board notes that the Veteran has more recently asserted engaging in firefights with the enemy. See the VA examination report dated May 2013. To this end, the Board recognizes that the nature of the Veteran's military duties, specifically, repairing boats on inland waterways in the Republic of Vietnam, is consistent with his assertions of limited combat exposure. Accordingly, the Board concedes the Veteran's engagement in combat during his service in the Republic of Vietnam. His claimed stressors are deemed confirmed without independent verification. See 38 U.S.C.A. § 1154(b) (West 2002) & 38 C.F.R. § 3.304(d) (2012)(which stipulate that VA is required to accept a combat veteran's statements as to injuries sustained in combat, so long as the statements are consistent with the circumstances, conditions, or hardships of the veteran's service and there no is clear and convincing evidence to the contrary). In any event, the Board notes that recent regulatory amendments have changed the evidentiary standards regarding stressors based on a veteran's fear of hostile military or terrorist activity. See 38 C.F.R. § 3.304(f)(3). Under the recent amendments, lay evidence may establish an alleged stressor where: 1) the stressor is related to a veteran's fear of hostile military or terrorist activity; 2) a VA psychiatrist, VA psychologist, or VA-contracted psychiatrist or psychologist, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that a veteran's symptoms are related to the claimed stressor; 3) the stressor is consistent with the places, types, and circumstances of a veteran's service; and 4) there is no clear and convincing evidence to the contrary. Fear of hostile military or terrorist activity occurs where 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. The provisions of this amendment apply to applications for service connection for PTSD that were appealed to the Board before July 13, 2010, but which have not been decided by the Board as of July 13, 2010. See Stressor Determinations for Posttraumatic Stress Disorder, 75 Fed. Reg. 39,843, 39,852 (July 13, 2010), corrected by 75 Fed. Reg. 41,092 (July 15, 2010). As such, they are applicable to this case. In this case, the Veteran has asserted additional stressors that are related to his fear of hostile military or terrorist activity during his service in the Republic of Vietnam. Specifically, as indicated above, the Board notes that the Veteran reported that he was repeatedly exposed to enemy gun and mortar fire. See the VA examination report dated May 2013. Importantly, however, the critical element, with respect to service connection for PTSD, is whether at any time during the current appeal the Veteran has been diagnosed with PTSD. For the reasons set forth in the following decision, the Board must answer this question negatively. Additionally, as will be explained below, the Board finds that the evidence of record does not support a finding that the Veteran's currently diagnosed acquired psychiatric disorder, specifically, major depression, is due to his military service. The Veteran's STRs demonstrate that he was diagnosed with an emotional disorder, psychoneurotic in type, namely, psychophysiologic reaction of organ of special sense, eye, manifested by pain behind his left eye, which a Medical Board determined rendered him unfit for further Naval service. See the Medical Board Report dated April 1971. In this regard, STRs documented the Veteran's constant pain secondary to congenital coloboma of the iris of his left eye. VA treatment records dated January 2004 show the Veteran's complaints of depression. A diagnosis of major depressive disorder, recurrent, rule out PTSD, was documented in March 2004. Continuing diagnoses of major depression and PTSD are noted in VA treatment records dated August 2004 and October 2004. However, there is no indication in the VA treatment records that the Veteran met the DSM-IV criteria for PTSD, as is required under 38 C.F.R. § 3.304(f). In a letter dated April 2004, Dr. M.S.B. stated, "I have been treating [the Veteran] for PTSD, related to the Vietnam War, for approximately eight months." Crucially, Dr. M.S.B. provided not explanation for her conclusion that the Veteran suffers from PTSD related to his Vietnam service. See Nieves-Rodriguez, 22 Vet. App. at 295; Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998) (the failure of the physician to provide a basis for his/her opinion goes to the weight or credibility of the evidence); see also Jones v. Shinseki, 23 Vet. App. 382 (2010). Accordingly, it is unclear if this diagnosis was under the DSM-IV criteria. The Veteran was afforded a VA examination in January 2011 at which time he detailed his in-service stressors including cleaning up boats after firefights and being around wounded soldiers while he was aboard the U.S.S. SANCTUARY. He also indicated that he was involved in sniper fire on at least two occasions. The VA examiner interviewed and examined the Veteran and noted, "[i]t is possible that cleaning up body parts on a boat could rise to the level of a PTSD stressor; however, the Veteran did not describe reacting at the time of intense fear or specific fear for his own life." The examiner continued, "[b]eing around wounded soldiers would not meet the criteria for a DSM-IV stressor of PTSD." The examiner noted that the Veteran reported feeling depressed since approximately 1991 or 1992. He stated, "[i]n regards to PTSD, the Veteran did describe vague events in the military but did not clearly describe reaction to these events with intense shock or fear that would be warranted for a diagnosis of a PTSD stressor. Regardless, the Veteran did not report symptoms that would be suggestive of a diagnosis of PTSD." Rather, the examiner diagnosed the Veteran with depressive disorder, not otherwise specific (NOS), and concluded that "[t]he Veteran's symptoms of depression appear to be mostly attributable to his chronic health problems." The Veteran was afforded a second VA examination in May 2013 at which time the examiner confirmed the existing diagnosis of depressive disorder, NOS. Critically, the examiner determined that the Veteran did not meet the DSM-IV criteria for a diagnosis of PTSD. Specifically, the examiner stated that "[a]lthough the Veteran reports lack of pleasure and possible restricted affect or lack of social activity, these symptoms are not associated with the diagnosis of PTSD, and are associated with another mood disorder. These symptoms are not specifically tied to his reported stressor." The examiner continued, "[t]he Veteran does not report symptoms meeting criteria B, C, D for a diagnosis of PTSD. Although VA records include a diagnosis of PTSD, the Veteran's report of symptoms during this examination and his previous C&P examination do not support such a diagnosis." As indicated above, the May 2013 VA examiner determined that the Veteran's symptoms are most consistent with a diagnosis of depressive disorder, NOS. The examiner concluded that "[t]he Veteran's diagnosis of depressive disorder, NOS, is less likely than not etiologically related to service. Rationale for this opinion is supported by his previous reports of symptoms beginning in 1991/1992." The examiner explained, "[t]he Veteran did not receive mental health care during or after the military so his symptoms were considered chronic after the military. He first sought mental health treatment after being diagnosed with multiple medical conditions. His diagnosis of depressive disorder, NOS, has been mostly closely associated with his medical problems." When assessing the probative value of a medical opinion, the access to claims files and the thoroughness and detail of the opinion must be considered. The opinion is considered probative if it is definitive and supported by detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). The Court has held that claims file review, as it pertains to obtaining an overview of a claimant's medical history, is not a requirement for private medical opinions. A medical opinion that contains only data and conclusions is not entitled to any weight. Further a review of the claims file cannot compensate for lack of the reasoned analysis required in a medical opinion, which is where most of the probative value of a medical opinion comes from. "It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion." See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). However, a medical opinion based on an inaccurate factual premise is not probative. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). A bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. See Miller v. West, 11 Vet. App. 345, 348 (1998); see also Leshore v. Brown, 8 Vet. App. 409 (1995). With respect to the claimed PTSD, the Board recognizes that the post-service medical records contain diagnoses of PTSD. See VA treatment records dated August 2004 and October 2004 & the letter from Dr. M.S.B. dated April 2004. Critically, however, these diagnoses were not rendered upon the application of the DSM-IV criteria as is required to sustain a claim of entitlement to PTSD pursuant to 38 C.F.R. § 3.304(f). Moreover, in her terse statement, Dr. M.S.B. provided no rationale to support her conclusion and, as such, her diagnosis of PTSD secondary to the Veteran's Vietnam service is of little probative value. See Nieves-Rodriguez, 22 Vet. App. at 295; Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998) (the failure of the physician to provide a basis for his/her opinion goes to the weight or credibility of the evidence); see also Jones v. Shinseki, 23 Vet. App. 382 (2010). As has been previously discussed herein, subsequent psychiatric evaluations, including the January 2011 and May 2013 VA examinations, specifically concluded that the Veteran does not meet the DSM-IV criteria for PTSD. Thus, the Board finds that at no time during the current appeal has the Veteran been diagnosed with PTSD, pursuant to the application of DSM-IV, and therefore service connection for PTSD cannot be awarded. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (in the absence of proof of a present disability, there can be no valid claim) & McClain v. Nicholson, 21 Vet. App. 319 (2007) (which stipulates that a service connection claim may be granted if a diagnosis of a chronic disability was made during the pendency of the appeal, even if the most recent medical evidence suggests that the disability resolved). With respect to the claimed depressive disorder, NOS, the medical evidence of record shows that the depressive disorder is not due to the Veteran's military service. Specifically, the Board finds the January 2011 and May 2013 VA medical examination reports probative as to the question of etiology as they appear to have been based upon a thorough review of the record and thoughtful analyses of the Veteran's entire history. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"). Crucially, the January 2011 and May 2013 VA examiners concluded that the Veteran's diagnosed depressive disorder, NOS, is not etiologically related to his conceded military stressors. The rationale was substantial, thorough, and based on the overall record. Critically, the Veteran has not produced a medical opinion to contradict the conclusion set forth in the January 2011 and May 2013 VA examination reports concerning the issue of medical nexus. As was explained in the VCAA section above, the Veteran has been afforded ample opportunity to present competent medical evidence in support of his acquired psychiatric disability claim. He has not done so. See 38 U.S.C.A. § 5107(a) (it is the claimant's responsibility to support a claim for VA benefits). Thus, the January 2011 and May 2013 VA examination reports stand unchallenged as competent medical evidence on the crucial question of medical nexus. The Veteran has submitted his own statements and personal testimony to support his claim of service connection. To this end, the Board notes that as a lay person, the Veteran is competent to testify to observable symptoms. See Washington v. Nicholson, 21 Vet. App. 191, 195 (2007) (holding that, "[a]s a layperson, an appellant is competent to provide information regarding visible, or otherwise observable symptoms of disability"); see also Barr, 21 Vet. App. 303, 312; Layno v. Brown, 6 Vet. App. 465 (1994). However, the Veteran is not competent to provide medical conclusions as to whether a disability is due to his military service. See Buchanan, 451 F.3d at 1331-37; see also Miller v. Derwinski, 3 Vet. App. 201, 204 (1992). Therefore, to the extent that the Veteran is claiming that he suffers from PTSD or that his currently diagnosed depressive disorder, NOS, is the result of his military service, laypersons without medical training, such as the Veteran, are not competent to comment on medical matters. See 38 C.F.R. § 3.159(a)(1). The Board further observes that the Veteran's contentions in support of service are contradicted by the findings of the January 2011 and May 2013 VA examiners who specifically considered his lay assertions and any such inferences contained in the record in rendering the negative nexus opinions. Rather, the medical evidence of record demonstrates that the Veteran suffers from an acquired psychiatric disorder which is related to his physical disabilities. This is supported not only by the conclusions of the January 2011 and May 2013 VA examiners, but also by the STRs which documented an in-service diagnosis of a psychophysiologic reaction secondary to his left eye disability, which rendered him unfit for further military service. See the Medical Board Report dated April 1971. The Board is charged with weighing the positive and negative evidence; resolving reasonable doubt in the Veteran's favor when the evidence is in equipoise. Considering the overall evidence, including the post-service medical evidence, the uncontradicted January 2011 and May 2013 VA examination reports, and the evidence presented by the Veteran, the Board finds that the negative evidence is more persuasive and of greater probative value. In conclusion, the preponderance of the evidence is against the Veteran's claim that he suffers from an acquired psychiatric disorder, to include PTSD and major depression, which is related to his military service. Thus, the benefit-of-the-doubt rule is not applicable to the claim. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and major depression, is denied. ____________________________________________ THOMAS H. O'SHAY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs