Citation Nr: 1326375 Decision Date: 08/19/13 Archive Date: 08/26/13 DOCKET NO. 10-05 241 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel INTRODUCTION The Veteran served on active duty from October 1965 to June 1969, including service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a November 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Veterans Appeals (Court) held that a claim for service connection for PTSD also encompass claims for service connection for all psychiatric disabilities afflicting a Veteran based on a review of the medical evidence. The Veteran originally filed a claim of entitlement to service connection for PTSD. As such, the Board recharacterized the issue on appeal as indicated. The Virtual VA claims file has been reviewed. The Veteran requested a Travel Board hearing, and one was scheduled for June 28, 2010. However, the Veteran failed to appear for the hearing without showing good cause for doing so, and his request will therefore be considered withdrawn. 38 C.F.R. § 20.704(d) (2012). In June 2011 and February 2013, the Board remanded the Veteran's claim for additional development of the record. The case has been returned to the Board. The RO/AMC complied with the Board's remand instructions; records pertaining to the Veteran's claim for Social Security disability benefits were obtained and the Veteran was afforded an additional VA examination, and the report has been associated with the Veteran's claims file. Stegall v. West, 11 Vet. App. 268, 271 (1998 FINDINGS OF FACT 1. The Veteran had a stressor event in service. 2. The Veteran does not meet the diagnostic criteria for PTSD. 3. The Veteran's dysthymic disorder did not manifest in service and is not attributable to service. CONCLUSIONS OF LAW 1. PTSD was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). 2. An acquired psychiatric disorder, including dysthymic disorder, was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that 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 a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In this case, the agency of original jurisdiction (AOJ) issued notice letters, dated in September 2008 and June 2012, to the Veteran. These letters explained the evidence necessary to substantiate the Veteran's claims for service connection, as well as the legal criteria for entitlement to such benefits. The letters also informed him of his and VA's respective duties for obtaining evidence. The AOJ decision that is the basis of this appeal was decided after the issuance of an initial, appropriate VCAA notice. As such, there was no defect with respect to timing of the VCAA notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA also has a duty to assist a veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). The claims file contains the Veteran's available service treatment records, reports of private and VA post-service treatment, records related to a claim for SSA disability payments, and the Veteran's own statements in support of his claim. The Veteran was afforded VA examinations responsive to the claim for service connection of an acquired psychiatric disorder, including PTSD. McClendon v. Nicholson, 20 Vet. App. 79 (2006). The opinions were conducted by medical professionals, following thorough examination of the Veteran, solicitation of history, and review of the claims file. The Board finds that the opinions are adequate. Additionally, the Veteran has not alleged that any examination is inadequate to decide the current claims, so it is presumed to have been adequate. See Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of the opinion). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). The Board has reviewed the Veteran's statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the Veteran's claim. For these reasons, the Board finds that the VCAA duties to notify and assist have been met. Legal Criteria for Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (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. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). There are particular requirements for establishing PTSD in 38 C.F.R. § 3.304(f) that are separate from those for establishing service connection generally. Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). 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. 38 C.F.R. § 3.304(f) and 38 C.F.R. § 4.125 (2002) (requiring PTSD diagnoses to conform to the DSM-IV). 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. 38 C.F.R. § 3.304(f)(1). See also 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d) (pertaining to combat Veterans). A finding that the Veteran engaged in combat with the enemy, however, requires that the Veteran participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality, and does not apply to veterans who served in a general "combat area" or "combat zone" but did not themselves engage in combat with the enemy. See VAOPGCPREC 12-99 (October 18, 1999). Prior to a recent amendment to the regulations, where a determination was made that the Veteran did not "engage in combat with the enemy," or the claimed stressor was not related to combat, the Veteran's lay testimony alone was insufficient to establish the occurrence of the alleged stressor. See Moreau v. Brown, 9 Vet. App. 389, 395 (1996). In such cases, service records or other corroborative evidence were required to substantiate or verify the Veteran's testimony or statements as to the occurrence of the claimed stressor. See West (Carlton) v. Brown, 7 Vet. App. 70, 76 (1994). Effective July 13, 2010, however, 38 C.F.R. § 3.304(f) was amended to reduce the evidentiary burden of establishing a stressor when it is related to a fear of hostile military or terrorist activity. See 75 Fed. Reg. 39843-01 (July 13, 2010), codified at 38 C.F.R. § 3.304(f)(3). The amendment provides that, if a stressor claimed by a veteran is related to the veteran's fear of hostile military activity, and a VA psychiatrist or psychologist confirms that the claimed stressor is adequate to support a diagnosis of PTSD, a veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor, as long as the claimed stressor is consistent with the places, types, and circumstances of the veteran's service and there is no clear and convincing evidence to the contrary. Id. "Fear of hostile military activity" is defined to mean 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, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. Id. The list of examples of such an event or circumstance specifically includes attack upon friendly military aircraft, vehicle-imbedded explosive devices, and incoming artillery, rocket, or mortar fire. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. For a chronic disease for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As will be explained below, the Veteran does not have a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) does not apply to the claims for service connection. Thus section 3.303(b) does not apply. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Analysis for Service Connection The Board notes that the Veteran had active service during a period of war. Likewise, the Veteran's DD Form 214 reflects that his military occupational specialty was jet engine mechanic. Service personnel records indicate that the Veteran had service in Vietnam from June 1968 to June 1969. The evidence does not suggest that he engaged in combat with the enemy. Therefore, the combat provisions of 38 U.S.C.A. § 1154 (West 2002) are applicable. Service treatment records do not show that the Veteran had any psychiatric complaints, including depression, nervous trouble, loss of memory, or sleep impairment. His April 1969 separation examination report indicates that a psychiatric evaluation was normal; he denied experiencing depression, excessive worry, memory loss, and nervous trouble. Records associated with the Veteran's claim for Social Security disability benefits indicate that the Veteran is in receipt of such benefits as a result of diabetes mellitus with retinopathy, mild degenerative joint disease of the left wrist and thoracic spine, hypertension, and dyslipidemia. VA treatment records dated March 2005 to October 2008 show that the Veteran was treated for adjustment disorder with depressed mood. The Veteran reported depression due to his medical conditions and the death of a godmother and sister. A September 2007 VA mental health treatment note indicates that the Veteran reported that his base came under rocket and mortar fire when he was in Vietnam; he also reported experiencing nightmares and intrusive thoughts about his Vietnam experience. He also complained of hypervigilance and social isolation. Upon evaluation, his affect was broad, his speech and thought process were normal, his eye contact was good, he was oriented, and he had a stable mood with good insight. The assessment was PTSD and adjustment disorder. The Veteran was afforded a VA examination in connection with his claim in August 2011. According to the report, the Veteran stated that he saw a counselor at the Vet Center that told him he had PTSD. The Veteran reported that he was a jet aircraft mechanic and did not see combat, although he was exposed to mortar and rocket fire, body bags, and caskets during his service in Vietnam; he denied witnessing anyone being killed. He also reported that he had a gun pulled on him on two occasions while working as a sheriff's deputy after service. Following a complete psychosocial history, the mental status examination indicated that the Veteran had clear and logical thought process, good hygiene, orientation in all three spheres, good eye contact, and normal speech, without evidence of hallucinations, suicidal or homicidal ideation, memory loss, obsessive or ritualistic behavior, or panic attacks. There was no evidence of impaired sleep or impulse control. The Veteran denied severe depression, but evaluation was remarkable for chronic dysphoria and depleted emotional energy. The VA examiner found that the Veteran's description of mortar and rocket attacks appeared to meet the criteria for a circumstance involving actual or threatened death or serious injury, or a threat to the Veteran's physical integrity, but that the Veteran did not otherwise meet the criteria for a diagnosis of PTSD. The diagnosis was dysthymia (depressive neurosis). An April 2012 VA examination report indicates that the Veteran's dysthymia had its onset many years after the Veteran's service in the military and was not likely related to the Veteran's service. According to the report, the Veteran's dysthymia was likely related to work-related difficulties and disappointments. A May 2012 addendum report reiterated that the Veteran's dysthymia was less likely than not incurred in or caused by the in-service fear and anxiety surrounding his exposure to mortar attacks in Vietnam. The VA examiner also reiterated that the Veteran's dysthymia only had onset several years prior to the examination, and coincided with work difficulties and disappointments. The VA examiner explained that, during periods of distress and emotional turmoil, while suffering from a disorder such as dysthymia, individuals may ruminate, recollect, or contemplate prior disturbing or upsetting life experiences, but that such experiences are not necessarily contributors to the onset of a currently manifested condition. The examiner concluded that the etiology of the Veteran's dysthymia was thus not caused by the Veteran's experiences in service. As noted above, entitlement to service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), a confirmed stressor event, and medical evidence linking the stressor event to the Veteran's PTSD. Although there is a diagnosis of PTSD in the Veteran's VA treatment records, the Board is not bound to accept medical opinions that are based on a history that is unsupported by the medical evidence or based upon an inaccurate factual background. Black v. Brown, 5 Vet. App. 177 (1993); Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The Board acknowledges that a September 2007 VA treatment record shows an assessment of PTSD and that the Veteran reported a diagnosis of PTSD by the Vet Center; however, the Board points out that there is no rationale or supporting records for the diagnosis. To the contrary, the VA examiner reviewed the claims file and acknowledged that the Veteran had a claimed stressor adequate to support a diagnosis of PTSD, as the Veteran had experienced a fear of hostile military activity during his service in Vietnam, in accordance with the recent amendment codified at 38 C.F.R. § 3.304(f)(3). However, the VA examiner went on to find that the Veteran did not meet the criteria for a diagnosis of PTSD under the DSM-IV, in accordance with 38 C.F.R. § 4.125(a). In sum, the evidence establishes that the Veteran has not been diagnosed with PTSD due to a corroborated stressor. The VA examiner's opinion is entitled to substantial probative weight. To the extent that the Veteran states he was told he had PTSD, the Veteran competent to report that which he has been told. In fact, the file includes an assessment of PTSD by one examiner. Nevertheless, the probative value of his general lay assertions is outweighed by the specific, reasoned conclusions of the August 2011 VA examiner, which is consistent with the actual factual record. We find the opinion of the August 2011 VA examiner to be highly probative. As the preponderance of the evidence establishes that the Veteran does not have PTSD, he has not established the current disability element of the claim for entitlement to service connection for this disability. The August 2011 VA examiner also found that the Veteran did have a psychiatric disorder that conformed to the DSM-IV criteria, namely dysthymia. However, the VA examiner noted that, since the Veteran's dysthymia did not develop until many years after service, it was not likely related to the Veteran's experiences in service. There is no evidence of psychiatric disability in service or for many years thereafter, and the Veteran did not report that his psychiatric symptomatology began following service; according to the VA examination reports, the Veteran's dysthymia began after work-related difficulties and disappointments. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). Here, there is evidence both in favor and against the Veteran's claim. There is an assessment of PTSD and the report of the Veteran that he has been told he has PTSD. However, the positive evidence is of little probative value. The Veteran's lay opinion is lacking in detail; in essence, his statement is entitled to no greater probative weight than the medical opinon upon which it is based. The medical assessment of PTSD is remarkably lacking in clinical findings and reasoning upon whcih to support the diagnosis. Although competent, the assessment is accorded little probative value. In this case, the lay and medical positive evidence is less credible and probative than the detailed, reasoned negative medical evidence. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). To the extent that there is an assertion of in-service onset and continuing symptoms, the Veteran's remote lay assertion is inconsistent with the clinical evidence of record. That record establishes a remote post-service onset. This determination is consistent with the fact that he was normal at separation and he denied pertinent pathology at that time. Furthermore the record establishes that the post service diagnosis is unrelated to service. The April 2012 and May 2012 VA examination reports explained the reasons for the VA examiner's conclusions based on an accurate characterization of the evidence of record; thus, this opinion is entitled to substantial probative weight. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (stating that factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion). Simply put, the probative value of the Veteran's general lay assertions relating his dysthymia to service are outweighed by the specific, reasoned opinion of the August 2011, April 2012, and May 2012 VA examination reports and addendum. In sum, the probative evidence establishes that there was a remote post-service onset of a psychiatric disorder and such disorder is unrelated to service. For the foregoing reasons, the preponderance of the evidence is against the claim for entitlement to service connection for an acquired psychiatric disorder, including PTSD. The benefit-of-the-doubt doctrine is therefore not for application with regard to the service connection claim decided herein. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). ORDER Entitlement to service connection for PTSD is denied. Entitlement to service connection for an acquired psychiatric disorder is denied ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs