Citation Nr: 1326669 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 11-31 801 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Fort Harrison, Montana THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression. REPRESENTATION Appellant represented by: Bryan Held, Accredited Agent ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from February 1967 to December 1970. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Fort Harrison, Montana, which denied service connection for an acquired psychiatric disorder, claimed as PTSD and depression. FINDINGS OF FACT 1. A psychiatric disorder was not noted on the May 1966 service enlistment examination report. 2. The Veteran has currently diagnosed depression, but not PTSD. 3. The Veteran's depression is not etiologically related to service. CONCLUSION OF LAW The criteria for an acquired psychiatric disorder, to include PTSD and depression, have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties 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, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353-356 (April 30, 2008). 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 a February 2010 letter, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate a claim for service connection as well as what information and evidence must be submitted by the Veteran, what evidence VA would obtain, and of what assistance the VA could provide the Veteran in obtaining this evidence. The notice included provisions for disability ratings and for the effective date of the claim. The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence, including affording a VA psychiatric examination in June 2010 and a VA medical opinion in October 2012. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA opinions and findings obtained in this case are adequate, as the opinions were predicated on a full reading of the private and VA medical records in the Veteran's claims file. The VA nexus opinions considered all of the pertinent evidence of record, to include service treatment records, VA and private treatment records, statements from the Veteran, and provided a complete rationale for the opinions stated, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination and opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes service treatment records, VA and private treatment records, and the Veteran's statements. For these reasons, the Board finds that VA has fulfilled the duties to notify and assist the Veteran. Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may 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). The acquired psychiatric disorder in this case, to include PTSD and depression, are not considered a "chronic disease" of psychosis listed under 38 C.F.R. § 3.309(a) (2012); therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) do not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Generally, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Further, a veteran is presumed to be in sound condition upon entrance into service, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service, or where evidence or medical judgment is such as to warrant a finding that the disease or injury existed before acceptance and enrollment. 38 U.S.C.A. § 1111 (West 2002). Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). Where such defects, infirmities or disorders are not noted when examined, accepted, and enrolled for service, pursuant to 38 U.S.C.A. § 1111 and 38 C.F.R. § 3.304, in order to rebut the presumption of soundness on entry into service, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); VAOPGCPREC 3-03. When all 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 preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert, 1 Vet. App. at 57. Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment, including by a veteran. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner's opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). Service Connection for an Acquired Psychiatric Disorder The record contains conflicting assertions from the Veteran and his representative regarding whether a psychiatric disorder pre-existed service. In the substantive appeal (VA Form 9), the representative stated that there was evidence of non-combat PTSD related to childhood issues. The representative noted that the September 2011 statement of the case failed to consider entitlement to service connection based on aggravation of an acquired psychiatric disorder. It appears that the representative was suggesting that the Veteran's psychiatric disorder may have pre-existed service and was aggravated during service. That notwithstanding, in a later October 2012 and November 2012 correspondence, the representative asserted that the Veteran was sound at service entrance. Regardless of the conflicting assertions regarding the onset of the Veteran's purported psychiatric disorders, the Board finds that a pre-existing psychiatric disorder was not "noted" upon entrance into service. Specifically, the entrance examination report in May 1966 noted no psychiatric disorder. Further, there is not clear and unmistakable evidence that a psychiatric disorder existed prior to service. Although VA treatment notes reveal that the purported PTSD was related to childhood issues, as will be discussed in detail below, these assessments do not confirm a PTSD diagnosis as they were based on the Veteran's self-reporting. In a VA medical opinion dated October 2012, the VA psychologist opined that although the Veteran now claimed that his psychiatric disorder pre-existed service, there were no records or other evidence verifying the Veteran's contention. In this regard, the Board finds that the record does not include any objective evidence demonstrating a diagnosis, treatment, or complaints relating to a psychiatric disorder, to include depression, prior to service entrance. The Veteran has specifically stated that he did not receive mental health treatment prior to entering the military. See statement by Veteran in VA report of contact dated October 2012. For these reasons, the presumption of soundness applies in this case. See 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). The Board next finds that the Veteran has currently diagnosed depression. See June 2010 VA examination report. Although VA treatment records reflect notations of diagnoses of "PTSD from childhood trauma," the Board finds that these diagnoses are based on the Veteran's self-reporting, not on competent medical evidence, and are therefore of less probative value. For example, a September 2011 private treatment note from Emergency Mental Health Services reveals a diagnosis of PTSD by history. Further, there are no VA or mental health treatment notes of record for the Veteran's alleged PTSD prior to 1998. This is relevant given the Veteran's assertion that his PTSD is due to his "abandonment" from his mother at a very early age. It is reasonable to assume that, had the Veteran been suffering from PTSD symptoms since childhood, records would be available showing complaints, treatment, or diagnosis of PTSD or similar symptoms prior to 1998. Instead, the Veteran himself has stated that he did not receive any mental health treatment prior to entering the military. See statement by Veteran in VA report of contact dated October 2012. Moreover, VA treatment notes in 1998 describe the Veteran's issues not as related to childhood abandonment from his mother, but as due to the Veteran's discovery that his father had sexually abused his children (post-service separation). Further, VA treatment notes dated March 2005 reveal that a VA psychologist conducted a mental status examination and an in-depth interview with the Veteran and diagnosed Axis I alcohol dependency, major depressive disorder, and ruled out PTSD by history. Also, a November 2008 VA PTSD screening was negative. Although this evidence is dated prior to the current appeal period, it tends to show that, when objective testing was conducted (i.e., mental status examination and PTSD screening evaluation), the diagnoses were negative for PTSD. Additional evidence weighing against a diagnosis of PTSD includes the June 2010 VA psychiatric examination. Upon review of the claims file, an in-depth interview with the Veteran, and after conducting a mental status examination, the VA psychologist diagnosed the Veteran with major depression, recurrent, in partial remission secondary to childhood problems. The VA psychologist further noted that he was unable to find any symptoms of PTSD. For these reasons, the Board finds that the weight of the evidence reflects a current diagnosis of depression, but not PTSD. Next, the Veteran contends that his wife divorced him while he was stationed in Thailand during service. In the June 2010 VA psychiatric evaluation, the Veteran described this incident as "very upsetting." Service treatment records reflect that the Veteran sought treatment during service for "nerves" due to divorce proceeding with his wife. Three service treatment records dated from December 1969 to July 1970 show that the Veteran was prescribed valium with no further appointments noted. The Veteran points to this in-service incident as the cause of his psychiatric symptoms. The Board has considered the Veteran's contentions; however, the Board finds that the weight of the evidence of record demonstrates that currently diagnosed depression is not etiologically related to service. In this regard, the June 2010 VA psychologist opined that the Veteran's depression was not caused by service. In support of this opinion, the VA psychologist noted that the Veteran believed that his problems began during childhood and were related to family problems. Further, the VA psychologist noted that the Veteran reported a reasonably adequate and successful work career with problems occurring only occasionally when he was experiencing relationship difficulties. This evidence weighs against a finding that currently diagnosed depression is related to service. Further weighing against the Veteran's claim is an October 2012 VA medical opinion. During this evaluation, the Veteran was not present, but the VA psychologist noted that he reviewed the claims file. According to the October 2012 VA psychologist, it was less likely as not that the in-service complaints and treatment for "nerves" was the initial manifestation of any currently diagnosed psychiatric disorder. Specifically, the October 2012 VA psychologist stated that the Veteran had a total of three contacts with mental health professionals over a seven month period in 1969 to 1970, all associated with unspecified "personal problems" and divorce. Following that, there were no further mental health treatment notes until 18 years later, i.e., 1998. The October 2012 VA psychiatrist opined that the in-service incidents were situational and transient. Further, the October 2012 VA psychologist noted that treatment notes from June 1998 describe the Veteran's problem as relating to the discovery that his father had sexually abused his children. The October 2012 VA psychologist also noted that there was only a brief mention in passing of the Veteran's mother being treated for tuberculosis and being unavailable for a time; however, this was not described as "abandonment." The Board has also reviewed private and VA treatment notes of record; however, they do not demonstrate that the Veteran's depression was incurred in or related to service. The Board has considered the Veteran's statements asserting a nexus between his currently-diagnosed depression and service. While the Veteran is competent to report symptoms as they come to him through his senses, including depression that he experiences at any time, in this particular case, given different events that occurred that could be the cause of the depression, depression is not the type of disorder that the Veteran is competent to opine regarding etiology. See Layno, at 465 (competent lay evidence is evidence not requiring that the proponent have specialized education, training, or experience, but is provided by a person who has knowledge of facts or circumstances and conveys matter that can be observed and described by a lay person); see also Rucker, 10 Vet. App. 67, 74 (stating that a lay person is not competent to diagnose or make a competent nexus opinion about a disorder as complex as cancer). Here, the evidence of record demonstrates that there are various issues which may relate to the Veteran's depression, including childhood abandonment from his mother, sexual abuse of family members, alcohol abuse, divorce, and problems with romantic relationships. The Board finds that the Veteran's lay statements asserting a nexus between his currently-diagnosed depression and service are outweighed by the evidence of record, including the June 2010 VA examination report and October 2012 VA medical opinion, which demonstrate that the Veteran's depression is not related to service. Based on the evidence of record, both lay and medical, the Board finds that the weight of the evidence is against a finding of relationship between the Veteran's currently diagnosed depression and the in-service treatment for "nerves" in 1969 to 1970. Accordingly, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for an acquired psychiatric disorder, to include PTSD and depression, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for an acquired psychiatric disorder, to include PTSD and depression, is denied. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs