Citation Nr: 1325673 Decision Date: 08/14/13 Archive Date: 08/16/13 DOCKET NO. 09-26 770 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder other than depression and anxiety, to include posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. Fleming, Counsel INTRODUCTION The Veteran served on active duty from January 1966 to January 1968, including service within the Republic of Vietnam. These matters come before the Board of Veterans' Appeals on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. The United States Court of Appeals for Veterans Claims (Court) has held that, although an appellant's claim identified posttraumatic stress disorder without more, it cannot be a claim limited only to that diagnosis, but must rather be considered a claim for any mental disability that may reasonably be encompassed by several factors-including the claimant's description of the claim, the symptoms the claimant describes, and the information the claimant submits or that VA obtains in support of the claim. The Court reasoned that the appellant did not file a claim to receive benefits only for a particular diagnosis, but for the affliction (symptoms) his mental condition, however described, causes him. Clemons v. Shinseki, 23 Vet. App. 1 (2009). In this case, the Veteran filed a claim seeking service connection for PTSD specifically. A separate claim for service connection for anxiety and depression was denied in a June 2009 rating decision that the Veteran did not appeal; thus, that matter is not included in the instant claim. In view of this, the Veteran's current claim is classified as service connection for an acquired psychiatric disorder other than anxiety and depression, to include PTSD, and the Board has amended the issue accordingly. See Clemons, 23 Vet. App. 1 (2009). The decision below addresses the Veteran's claim for service connection for an acquired psychiatric disorder other than anxiety and depression, to include PTSD. The claim for service connection for tinnitus is addressed in the remand that follows the decision. FINDING OF FACT The Veteran does not have a currently diagnosed acquired psychiatric disorder. CONCLUSION OF LAW An acquired psychiatric disorder other than depression and anxiety, to include PTSD, was not incurred in or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The United States Court of Appeals for Veteran Claims' (Court's) decision in Pelegrini v. Principi, 17 Vet. App. 412 (2004), held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. This decision has since been replaced by Pelegrini v. Principi, 18 Vet. App. 112 (2004), in which the Court continued to recognize that typically a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In this case, VA satisfied its duties to the Veteran in VCAA letters issued in May 2008 and July 2009. See id. The VCAA letters notified the Veteran of what information and evidence is needed to substantiate his claims of service connection, what information and evidence must be submitted by the claimant, what information and evidence will be obtained by VA, and the types of evidence necessary to establish a disability rating and effective date. Id.; but see VA O.G.C. Prec. Op. No. 1-2004 (Feb. 24, 2004); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of any notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Board also finds that VA has complied with all assistance provisions of VCAA. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The evidence of record contains the Veteran's service treatment records and lay statements of the Veteran, as well as post-service treatment from VA treatment providers. The evidence of record also contains an examination requested by VA performed in February 2009. The Board finds that the February 2009 VA examination report is thorough and contains sufficient information to adjudicate the issue decided herein. McLendon v. Nicholson, 20 Vet. App. 79 (2006). For all the foregoing reasons, the Board concludes that VA's duties to the Veteran have been fulfilled with respect to the issue decided herein. Criteria & Analysis Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in the line of duty or for aggravation of a pre-existing injury or disease in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also 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. 38 C.F.R. § 3.303(d). In addition, if a psychosis becomes manifest to a degree of 10 percent or more during the one-year period following a Veteran's separation from active service, the condition may be presumed to have been incurred in service, notwithstanding that there is no in-service record of the disorder. 38 U.S.C.A. §§ 1101, 1112 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. See 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(f)(2). 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. See 38 C.F.R. § 3.304(f)(3) (2012); 75 Fed. Reg. 39,843-39,852 (July 13, 2010). The provisions of 38 C.F.R. § 4.125(a) require that a diagnosis of a mental disorder conform to the Diagnostic and Statistical Manual, Fourth Edition (DSM-IV). The Veteran asserts that he has an acquired psychiatric disorder, to include PTSD, that is related to his time in service. In particular, the Veteran stated in his April 2008 claim that his PTSD developed following an incident in which an incoming mortar round exploded six feet from where he was standing. Upon review of the evidence of record, the Board finds that the preponderance of the evidence is against a finding that the Veteran has an acquired psychiatric disorder, to include PTSD. In that connection, the Board notes, first, that the Veteran's service treatment records are silent as to any complaints or diagnoses of any psychiatric problems, and he was noted to have a normal psychiatric system at his January 1968 separation medical examination. Post-service treatment records are similarly silent as to any complaints of psychiatric difficulties. In February 2009, the Veteran underwent VA examination concerning his claim for an acquired psychiatric disorder. At that time, the examiner conceded the Veteran's in-service stressors, noting that he had been stationed in combat zones in Vietnam. However, the Veteran reported that he did not think he was depressed, and the examiner noted a normal affect and a cooperative, friendly attitude. The examiner found the Veteran to have no acquired psychiatric disorder at all and diagnosed him only with alcohol abuse and dependence. The Veteran again underwent VA examination in May 2009 for an unrelated claim for service connection for anxiety and depression; at that time, the VA examiner reached the same conclusion: that the Veteran does not currently experience any acquired psychiatric disorder. Further, although his wife and mother have submitted statements indicating that the Veteran's temperament was different following his return from service, the Veteran has not submitted any post-service medical evidence reflecting a diagnosis of any acquired psychiatric disorder at any time since his separation from active duty. In this case, the evidence establishes that the Veteran has not been diagnosed with any chronic acquired psychiatric disorder. The Board finds that there is no evidence that the Veteran currently experiences any acquired psychiatric disorder that can be related to active service. In the absence of proof of a current acquired psychiatric disorder, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Congress has specifically limited entitlement to service connection to cases where such incidents have resulted in a disability. Brammer, 3 Vet. App. at 225. In the absence of any competent evidence of a current acquired psychiatric disorder, the Board must conclude the Veteran does not currently suffer from any such disabilities. Without competent evidence of a current acquired psychiatric disorder due to disease or injury, the Board must deny the Veteran's claim. See Degmetich v. Brown, 104 F.3d 1328, 1333 (1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). (The Board notes that, insofar as the Veteran has been diagnosed with alcohol dependence and abuse, VA is prohibited by statute, 38 U.S.C.A. §§ 1110 and 1131, from paying compensation for a disability that is a result of the Veteran's own alcohol or drug abuse.) The Board has considered the Veteran's contention that he has an acquired psychiatric disorder that is related to service. In adjudicating this claim, the Board must assess the Veteran's competence and credibility. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368- 69 (2005). In Barr v. Nicholson, 21 Vet. App. 303 (2007), the Court emphasized that lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witness's personal knowledge. See also 38 C.F.R. § 3.159(a)(2) (competent lay evidence means any evidence not requiring that the proponent have specialized education, training or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person). In the instant case, the Board finds that the question of whether the Veteran has PTSD or any other acquired psychiatric disorder related to any incident(s) during his military service to be complex in nature. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Here, although the Veteran is competent to describe his experiences in service and his current symptoms, the Board accords his statements regarding the nature and etiology of his alleged disability of little probative value, as he is not competent to opine on such a complex medical question. Specifically, where the determinative issue is one of medical diagnosis or causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. West, 12 Vet. App. 460, 465 (1999). The Veteran has offered only conclusory statements regarding the relationship between his in-service experiences and a claimed diagnosis of PTSD. In contrast, the VA examiners, who are mental health professionals, took into consideration all the relevant facts in providing their opinions, to include the Veteran's reported in-service stressors. Importantly, the Board notes that the February 2009 and May 2009 opinions are uncontradicted by any other medical evidence of record in finding that the Veteran does not currently experience an acquired psychiatric disorder. Therefore, the Board accords greater probative weight to the VA examiners' opinions rather than to the Veteran's statements on the matter. With regard to assessing the credibility and competency of the statements offered by the Veteran and his family members, while they are competent to describe his psychiatric symptoms (i.e., that is, symptoms capable of lay observation), diagnosing a psychiatric disorder is not something he has demonstrated that he has the medical expertise to do. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Moreover, as discussed, neither VA examiner found the Veteran to experience a current acquired psychiatric disorder. The Board accepts the opinion of the VA examiners that the Veteran does not experience a current acquired psychiatric disorder as being the most probative medical evidence on the subject, as the opinions are based on a thorough review of all historical records and a thorough examination, and the reports contains detailed rationale for the examiners' conclusion that the Veteran does not have a current acquired psychiatric disorder. The Board finds compelling, as noted above, the fact that these opinions are not contradicted by any medical evidence of record. As discussed, the February 2009 and May 2009 examination reports are negative for objective findings of any acquired psychiatric disorder. The Veteran's contentions of chronic disabilities are outweighed by the objective-and uncontradicted-clinical findings and conclusions made by medical professionals. Absent a showing of psychiatric pathology, service connection for such disability cannot be granted. Thus, the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the claim of service connection for an acquired psychiatric disorder must be denied. See Gilbert v. Derwinski, 1 Vet. App 49 (1990). In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for an acquired psychiatric disorder other than depression and anxiety, to include PTSD is denied. REMAND Service connection is in effect, in pertinent part, for bilateral hearing loss, currently rated as 40 percent disabling. The Veteran has contended that he experiences tinnitus as a direct result of his time in service. In addition, in an August 2013 informal hearing presentation, the Veteran, through his representative, has asserted that he developed tinnitus secondary to his service-connected bilateral hearing loss. Service treatment records do not reflect any findings or complaints of ringing in the ears or any other ear problems. Post-service treatment records reflect that the Veteran has not sought treatment for tinnitus. In a tinnitus questionnaire submitted in April 2008 at the time he filed the instant claim, he reported that he first developed tinnitus 15 years ago and specifically denied having first experienced tinnitus in service. Similarly, at his February 2009 VA examination, the Veteran stated that he first noted tinnitus approximately 15 to 20 years ago but did not experience it in service. At that time, the examiner opined that the Veteran's current tinnitus is not etiologically linked to service, pointing to the 20-year gap between his separation from service and the onset of tinnitus. However, the examiner did not address the possibility that the Veteran's tinnitus developed secondary to his service-connected hearing loss. The Board finds that a more complete medical opinion from a VA examiner is needed regarding the Veteran's claim for tinnitus. Thus, on remand, the AOJ must obtain an opinion from the VA examiner who conducted the February 2009 examination. The examiner must specifically address whether the Veteran currently experiences tinnitus attributable to his service-connected bilateral hearing loss. The examiner must specifically discuss the Veteran's contentions that his tinnitus developed secondary to his hearing loss in the context of any negative opinion. See 38 U.S.C.A. § 5103A. (If further examination of the Veteran is necessary, such must be undertaken and such findings included in the examiner's final report. The agency of original jurisdiction must arrange for the Veteran to undergo examination, however, only if the February 2009 VA examiner is unavailable or if such examination is needed to answer the questions posed.) In view of the foregoing, the case is REMANDED for the following action: 1. The Veteran's claims file, including his complete service treatment records, must be referred to the examiner who provided the February 2009 VA examination. The reviewer's report must reflect consideration of the Veteran's documented medical history and assertions. The examiner must provide a well-reasoned opinion addressing whether it is at least as likely as not that the Veteran's tinnitus was caused by or has been chronically worsened by his service-connected bilateral hearing loss. If the examiner finds the Veteran's tinnitus to have been aggravated by his hearing loss, she must specify the baseline of tinnitus prior to aggravation, and the permanent, measurable increase in tinnitus resulting from the service-connected bilateral hearing loss. Complete rationale for all opinions expressed must be provided. If the examiner is no longer available, the claims file should be referred to another qualified examiner to provide the requested opinion. If, and only if, the initial examiner or substitute deems it necessary (in order to provide an informed opinion), another examination should be scheduled. 2. After completing the requested actions and any additional notification and/or development deemed warranted, the claim for service connection for tinnitus must be adjudicated in light of all pertinent evidence and legal authority. If any benefit sought is not granted, the Veteran must be furnished a supplemental statement of the case (SSOC) and afforded the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. No action is required of the Veteran until he is notified; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2012). The Veteran has the right to submit additional evidence and argument on the matter 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). ______________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs