Citation Nr: 1326321 Decision Date: 08/19/13 Archive Date: 08/26/13 DOCKET NO. 12-29 093 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, including posttraumatic stress disorder (PTSD). ATTORNEY FOR THE BOARD N. Sonia, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1986 to December 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. During the course of the appeal, the evidentiary development has produced evidence showing a psychiatric diagnosis of adjustment disorder with mixed anxiety and depressed mood. In light of the evidence of record and the decision in Clemens v. Shinseki, 23 Vet. App. 1 (2009), the Board has characterized the issue, formerly claimed as PTSD, as service connection for an acquired psychiatric disorder, including PTSD, to address all possible psychiatric disorders, not simply "PTSD". FINDINGS OF FACT 1. The evidence of record shows that the Veteran has not had PTSD during the course of his claim and appeal. 2. The Veteran does not have an acquired psychiatric disorder other than PTSD that is related to his active service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, including PTSD, have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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 (West 2002); 38 C.F.R. § 3.303(a)(2012). "To establish a right to compensation for a present disability, a Veteran must show: '(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'-the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Establishing service connection for PTSD requires (1) a current medical diagnosis of PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in-service stressor. 38 C.F.R. § 3.304(f) (2012). The diagnosis of PTSD must comply with the criteria set forth in the Diagnostic and Statistical Manual of Mental Disorders, 4th edition, of the American Psychiatric Association (DSM-IV). Id.; see also 38 C.F.R. § 4.125(a)(2012). In the present appeal, the Veteran contends that he has PTSD due to in-service events. Specifically, in his July 2010 stressor statement, he indicated that during service, he observed several dead bodies and endured a "ground campaign" involving mortar fire. During the December 2010 VA examination, the Veteran also reported an incident near the Euphrates River in which the vehicle he was traveling in was stuck in mud overnight. He stated he felt like an "open target." First, the preponderance of the evidence shows that the Veteran does not have a current medical diagnosis of PTSD in accordance with the DSM-IV criteria at this time. For example, in the December 2010 examination report, the examiner concluded that the Veteran demonstrated symptoms of PTSD, but such symptoms were in the "mild range." As a result, the examiner found that the Veteran did "not meet the DSM-IV criteria for PTSD," and she not provide any Axis I diagnosis, providing evidence against the claim that the Veteran has PTSD at this time. Further, the evidence of record also includes VA treatment records from the Portland VA Medical Center. A PTSD screening was performed in September 2006, which was negative for PTSD, providing more evidence against this claim. In his November 2011 Notice of Disagreement (NOD), the Veteran asserted that he has PTSD and that it is "severe." The Board notes that the Veteran is competent to describe symptoms he experienced, whether in service or during the years since discharge, based on his personal knowledge. Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, determining whether symptoms are indicative of a psychiatric disorder, and, if so, what disorder, is a complex medical analysis that cannot be made solely by observation by one's senses. Therefore, the Board finds that the statements by the Veteran regarding his diagnosis of PTSD are not competent evidence. Simply stated, while the Veteran may believe he has PTSD, the Veteran does not have the medical expertise to diagnose himself with PTSD. Thus, the preponderance of the evidence is against the finding of the first element of entitlement to service connection for PTSD, and therefore the appeal as to this issue must be denied. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); Romanowsky v. Shinseki, 11-3272, 2013 WL 1907369 (Vet. App. May 9, 2013). There is no reasonable doubt to be resolved in this issue. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). Next, the Board will consider the diagnosis of an acquired psychiatric disorder other than PTSD that was contained in a September 2012 psychological evaluation. The evaluation was performed in conjunction with the Veteran's claim for benefits administered by the Social Security Administration (SSA) for a back disability. However, in the VA examination from December 2010, the examiner found no Axis I diagnosis, providing evidence against the claim that the Veteran has such disability at this time. In this regard, the examiner found mild "symptoms" of PTSD (not a finding of "PTSD") and explained that the Veteran "has functioned well in his occupation and in social relationships. His most salient symptoms are in his sleep disturbance." The examiner based the aforementioned opinion on a review of the claims file, which included the Veteran's documented and reported history, and provided a conclusion with a supportive rationale. The December 2010 VA medical opinion is therefore probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Even if the Board were to assume that the Veteran has an acquired psychiatric disorder at this time other than PTSD (VA examination from December 2010 is older than the September 2012 psychological evaluation from SSA), and that there is an in-service disease or injury, the preponderance of the evidence is against a finding that any current acquired psychiatric disorder is related to an in-service injury or event. In this regard, the Veteran himself has provided facts against this claim. First, the Board will discuss the occurrence of an in-service injury: In the case of any veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, campaign, or expedition, the Secretary shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. 38 U.S.C.A. § 1154(b) (West 2002). Service-connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. Id. In the present appeal, the Veteran has described stressors related to combat experiences, specifically in Saudi Arabia. The Veteran's DD-214 identifies the Veteran's specialty as "cannon crewmember" and personnel records confirm the was in Saudi Arabia in 1991. Because there is no clear and convincing evidence to rebut the Veteran's account of his combat experience, it must be taken as fact. Id. However, Section 1154(b) does not establish entitlement to a grant of service connection for a combat veteran; rather it aids him or her by relaxing the adjudicative evidentiary requirements for determining what happened in service. See Collette v. Brown, 82 F.3d 389, 392 (Fed. Cir. 1996). What still must be shown in such cases are the present disability and nexus elements of a service connection claim. See Dalton v. Nicholson, 21 Vet. App. 23, 37 (2007). Thus, in this case, the remaining issue to be resolved in terms of the acquired psychiatric disorder other than PTSD is the nexus element. The Board finds that the preponderance of the evidence is a against a finding that the Veteran's currently diagnosed acquired psychiatric disorder is related to active service. Service treatment records contain no complaints, treatment, or diagnoses for any acquired psychiatric disorders. Moreover, the December 1991 separation examination report does not show any psychiatric conditions, which provides factual evidence against the Veteran's claim. Furthermore, the Veteran himself indicated denied having any "nervous trouble" on the December 1991 report of medical history, providing additional evidence against his own claim. In addition, the September 2012 psychological report attributes the Veteran's adjustment disorder with mixed anxiety and depressed mood to his non-service connected back disability resulting in employment and physical activity limitations. This is supported by the Veteran's own statements: In the September 2012 evaluation, the Veteran reported to the examiner that he occasionally felt "blue" because of occupational and recreational limitations he experiences as a result of his back disability, providing factual evidence against his own claim as he is clearly indicating the cause of the problem (the back, not service). Thus, the September 2012 evaluation is evidence against the Veteran's claim because it shows that the diagnosis of adjustment disorder with mixed anxiety and depressed mood is linked to the Veteran's non-service connected disability (the back). Therefore, the Board finds that the preponderance of the evidence weighs against the claim for service connection for an acquired psychiatric disorder other than PTSD, and the appeal as to this issue must be denied. There is no reasonable doubt to be resolved in this issue. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 2107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). As discussed below, VA has fulfilled its duties under the VCAA. When VA receives a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159 (b). Proper notice from VA must inform the claimant of any information and 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 C.F.R. § 3.159 (b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). For service-connection claims, the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of the 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 (2006). In the present appeal, the VCAA duty to notify was satisfied by a June 2010 letter that informed the Veteran of what evidence was required to substantiate the claim, and of his and VA's respective duties for obtaining evidence. The letter also included the type of evidence necessary to establish a disability rating and effective date. Regarding the duty to assist, VA must make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The duty to assist also includes providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. 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). In connection with the current appeal, the evidence of record includes the Veteran's service treatment records, the Veteran's personnel records, statements in support of the claim by the Veteran, VA treatment records, private medical records, and three VA examinations, including a PTSD examination conducted in December 2010. The December 2010 examination was adequate because the examiner reviewed the Veteran's relevant medical history, recorded pertinent examination findings, and provided sufficient analysis to support her conclusions. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). The Board notes that the Veteran was not provided another examination subsequent to the diagnosis of an acquired psychiatric disability other than PTSD in September 2012. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159 (c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, the Board has sufficient competent medical evidence of record to make a decision on the claim. The September 2012 psychological evaluation clearly established that the Veteran's current diagnosis of adjustment disorder with mixed anxiety and depressed mood is related to limitations on his physical activities and employment opportunities, not his time in service. Therefore, the remaining evidence of record, as described above, provides sufficient information to decide the claim as to the issue of PTSD. Moreover, the Board recognizes that the third prong of McLendon, which requires that the evidence of record "indicates" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. McLendon, 20 Vet. App. at 83. However, in the present appeal, there is simply no indication that a psychiatric disorder other than PTSD may be associated with service or with another service-connected disability. To the contrary, the current diagnosis has been linked, by both a medical professional and the Veteran himself, to a non-service connected disability. Hence, under McLendon, the Board is not required to have the Veteran undergo a VA compensation examination for a medical nexus opinion again. Id. The Veteran has not identified, and the record does not otherwise indicate, any existing, pertinent evidence that has not been obtained. The record also presents no basis for further development to create any additional evidence to be considered in connection with the matters currently under consideration. Hence, no further notice or assistance to the Veteran is required for fair adjudication of the Veteran's claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Service connection for an acquired psychiatric disorder, including PTSD, is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs