Citation Nr: 1327087 Decision Date: 08/23/13 Archive Date: 08/29/13 DOCKET NO. 04-37 066 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, claimed as bad nerves and post traumatic stress disorder (PTSD). ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The Veteran (appellant) served on active duty from April 1963 to April 1965. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. This claim has been remanded by the Board in October 2007, June 2009, October 2010 and February 2012. The Board is satisfied that there was substantial compliance with its February 2012 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). In this regard, the RO attempted to verify the Veteran's stressors, and the Veteran has been examined. FINDINGS OF FACT 1. The Veteran does not meet the diagnostic criteria for a diagnosis of PTSD. 2. An acquired psychiatric disability other than PTSD was not present during service or within one year of service, and is not otherwise caused by or related to active service. CONCLUSIONS OF LAW 1. An acquired psychiatric disability other than PTSD was not incurred in active service, nor can it be presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 1131, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. PTSD was not incurred in active service. 3 8 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304(f) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). 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. Those five elements include: 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). Upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In a claim to reopen based on new and material evidence, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit that is being sought. Kent v. Nicholson, 20 Vet. App. 1 (2006). To satisfy this requirement, VA is required to look at the bases for the denial in the prior decision and to provide the claimant with a notice letter that describes what evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial. This case arises from a claim to reopen that was subsequently granted. The RO sent to the Veteran a VCAA letter that essentially complied with statutory notice requirements. VA notice included the criteria for reopening a previously denied claim, the criteria for establishing service connection, and information concerning why the claim was previously denied. This notice letter further included notice on how VA determines disability ratings and effective dates. This notice was provided prior to the adverse adjudication from which this appeal arises. After new and material evidence had been found by the Board in February 2012, the RO sent the Veteran a VCAA notice letter that addressed service connection. Therefore, the Board finds that the duty to notify has been satisfied. The United States Supreme Court has held that an error in VCAA notice should not be presumed prejudicial, and that the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Here, the Veteran has not demonstrated any prejudicial or harmful error in VCAA notice. VA further has a duty to assist. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. That is, VA must make reasonable efforts to assist the 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(a); 38 C.F.R. § 3.159(c), (d). Here, VA obtained service treatment records along with VA and private medical records. All these records have been associated with the claims file. Furthermore, in accordance with VA's duty to assist obligations, a VA medical examination was obtained. The Board notes that there has been no allegation that the VA examination was inadequate. The Board finds that the Veteran was afforded an adequate examination in this matter. Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008). Therefore, VA satisfied its duty to assist and the Board finds no prejudice in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the Veteran has been prejudiced thereby). Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claims. 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). Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the 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. 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). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection for certain chronic diseases may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year (three years for active tuberculous disease and Hansen's disease; seven years for multiple sclerosis) from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). The term "chronic disease" refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C.A. § 1101(3); 38 C.F.R. § 3.309(a); Walker v. Shinseki 708 F.3d 1331 (Fed. Cir. 2013). Where a chronic disease under 3.309(a) is "shown as such in service" ("meaning clearly diagnosed beyond legitimate question" or in the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). In cases where a chronic disease is "shown as such in service", the Veteran is "relieved of the requirement to show a causal relationship between the condition in service and the condition for which service connected disability compensation is sought." Walker v. Shinseki 708 F.3d 1331 (Fed. Cir. 2013). Instead, service connection may be granted for subsequent manifestations of the same chronic disease without any evidence of link or connection between the chronic disease shown in service and manifestations of the same disease at a later time. In other words, "there is no 'nexus' requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease." Id. If evidence of a chronic condition is noted during service or during the presumptive period, but the chronic condition is not "shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned," i.e., "when the fact of chronicity in service is not adequately supported," then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Proven continuity of symptomatology establishes the link, or nexus, between the current disease and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed." Id. 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); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between current symptomatology and an in-service stressor. 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). 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 posttraumatic stress disorder 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. Otherwise, the law requires verification of a claimed stressor. The provisions of 38 C.F.R. § 3.304(f)(3) are limited to stressors arising from hostile military or terrorist acts toward the U.S. military committed by individuals or entities, rather than acts of one service member directed at another service member. Hostile criminal actions, such as the harassment and personal assault stressors alleged by a Veteran are contemplated under the provisions of § 3.304(f)(5), which addresses evidentiary considerations where PTSD is alleged to have resulted from an in-service personal assault. Acevedo v. Shinseki, No. 10-3402 (U.S. Vet. App. July 9, 2012). VA is required to evaluate the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the Veteran served, the Veteran's military records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). PTSD The Veteran claims that he has PTSD as a result of his military service. He states that the stress of service in the DMZ in Korea. He reports that his unit was under the stress of gun fire, sniper fire and ambush by the North Korean Army. The Veteran reported that his unit encountered a North Korean agent who started to throw a knife at him but a sergeant told the North Korean to drop the knife, which he did. After the North Korean agents started to run away, the Veteran contended that he was about to shoot at them but the sergeant told him not to. He added that he was afraid the North Koreans would come back and kill the unit when they stayed in the DMZ overnight. The first element of a claim for service connection is that there be evidence of a current disability. For the reasons noted below, the Board finds that the Veteran does not have PTSD. The Veteran was examined by VA in February 2013. The examiner found that the Veteran's symptoms did not meet the diagnostic criteria for PTSD under DSM-IV criteria. The examiner noted that the claims file had been reviewed. The Veteran's history was noted. The Veteran reported having a good appetite and pretty good sleep since he took medication to stop his back pain. It was noted that he presented with good attention to hygiene and appearance and with appropriate eye contact. His sleep was noted to be disturbed due to pain. The Veteran reported having inservice stressors of cleaning mine fields in the DMZ, and witnessing a person stepping on a mine and having his foot blown off, and fear while on patrol there. The examiner found that the Veteran lacks sufficient re-experiencing, avoidance and persistent arousal symptoms specific to the stressors he noted to meet the diagnostic threshold. Anxiety disorder was diagnosed. The Board notes that some VA mental health records contain diagnoses of PTSD; however none of those records reveal a DSM-IV derived diagnosis of PTSD. Notably, in March 2011, the Veteran reported being stressed due to pain. He was examined and PTSD was diagnosed. Further PTSD is noted on several occasions in a list of problems the Veteran has. (See e.g., records of January 2011, March 2011, August 2011, July 2011, and June 2011. PTSD is noted as an Axis I diagnosis in March, 2011, and again in June 2011. These findings do not reference any tests or studied done, nor do they contain any discussion of the DSM-IV PTSD criteria. It is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same and, in doing so, the Board may accept one medical finding and reject others. Evans v. West, 12 Vet. App. 22, 30 (1998). With regard to medical evidence, an assessment or opinion by a health care provider is never conclusive and is not entitled to absolute deference. 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). Here the Board finds that the clinical findings of the February 2013 VA examiner to be more probative in that the Veteran was examined, the claims file was reviewed, his history was documented and the diagnostic criteria for PTSD under DSM-IV criteria were discussed. In short, the most competent and comprehensive medical evidence of record indicates that the Veteran does not have PTSD, which is a criterion required for service connection. As the preponderance of the competent evidence establishes that the first criterion for service connection for PTSD has not been met, service connection for PTSD cannot be established. Further, the Board notes that the RO and AMC's attempts to verify his stressors have been unsuccessful. Since the Veteran's alleged stressor has not been verified, this element required for entitlement to service connection for PTSD is not met as well. As such, the claim for service connection for PTSD must be denied. In making the above determination, the Board has considered the Veteran's assertions that he has PTSD. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2007). However, the Veteran as a lay person is not competent to testify that he has a diagnosis of PTSD. Concerning this, the Board is mindful that competent medical evidence is not necessarily required where the determinative issue in a case involves medical causation or a medical diagnosis. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. Sept. 14, 2009), citing Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Barr v. Nicholson, 21 Vet App 303 (2007) (lay testimony is competent to establish the presence of varicose veins); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis). However, in this case, the Veteran is not providing statements related to the diagnosis of a simple disorder or about symptomatology but is instead rendering an opinion as to whether he has a psychiatric diagnosis of PTSD. Unlike the varicose veins in Barr or dislocated shoulder in Jandreau, PTSD is not a condition capable of lay diagnosis, nor is it the type of condition that can be causally related to military service without medical expertise. Davidson, 581 F.3d 1313; Buchanan, 451 F.3d 1331; Jandreau, 492 F.3d 1372. In this regard, a diagnosis of PTSD requires medical expertise. Thus, the Board concludes that, although the Veteran is competent to report symptoms he experienced while in service and after service, his statements as to the diagnosis of any PTSD do not constitute competent evidence. Therefore, the Veteran's statements regarding a diagnosis of PTSD do not constitute competent medical evidence on which the Board can make a service connection determination. An Acquired Psychiatric Disability Other than PTSD With regard to the claim of entitlement to service connection for an acquired psychiatric disability other than PTSD, the Board notes that the service treatment records are negative for complaints, findings, or diagnoses of any psychiatric disability. The separation examination report notes normal psychiatric evaluation. The post-service private medical evidence reflects a long history of treatment for psychiatric complaints. It is noted that the Veteran was diagnosed with personality disorder of the passive aggressive type with resulting reactive depression of a mild nature in March 1968 for marital and interpersonal conflicts with results of aggressive and acting out behavior. In September 1969 he was again seen for alcohol addiction. A private examiner reported in July 1979 that he had treated the Veteran for a psychiatric disability. VA records show that on examination in October 1979, there was no finding of a psychiatric disorder. By way of history it was noted that there was no treatment for psychiatric disorders in service and that after service he was seen in about 1968. The examiner found that there was no mental disorder-schizophrenia not found. In August 1980, VA records show a diagnosis of chronic anxiety with continuing treatment. For example, in June 1984, psycholphysicological reaction was found. In March 1987, acute anxiety was diagnosed and in April 1987 as well as December 1987, schizoid personality disorder was found. Private and VA records show continuing treatment for psychiatric complaints with diagnoses of anxiety state, depressive disorder affective psychosis, major depression, schizophrenia, schizophrenic reaction, and alcohol dependence. In February 2013, the Veteran was examined by VA. Anxiety disorder, NOS was diagnosed. The examiner stated that the onset reported to follow service, specifically a back injury which the Veteran stated impacted on his ability to function. The Veteran attributed his disturbance in mood and functional ability to function to a back injury which he states occurred in service. A review of the file shows that a chronic acquired psychiatric disability was not present during active service or within one year or the Veteran's discharge therefrom. Instead, the Veteran's treatment for psychiatric complaints began in 1968, three years after service discharge and treatment has continued to currently. He does not allege treatment in service or continuous symptomatology since service, and the competent medical evidence of record suggests that these acquired psychiatric disabilities are more likely than not related to family stress, or physical problems and not related to active service. While he has contended that his depression is due to a back disorder related to service, he is not service connected for any back disability. While the Veteran may believe that his acquired psychiatric disability other than PTSD is etiologically related to service, the Board finds that the medical evidence of record outweighs his contentions. In this regard, the Board has considered the Veteran's assertions that he has an acquired psychiatric disability which is caused by or related to active service. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2007). However, the Veteran as a lay person is not competent to testify that he has an acquired psychiatric disability which is etiologically related to active service. Concerning this, the Board is mindful that competent medical evidence is not necessarily required where the determinative issue in a case involves medical causation or a medical diagnosis. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. Sept. 14, 2009), citing Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Barr v. Nicholson, 21 Vet App 303 (2007) (lay testimony is competent to establish the presence of varicose veins); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis). However, in this case, the Veteran is not providing statements related to the diagnosis of a simple disorder or about symptomatology but is instead rendering an opinion as to the etiology of his acquired psychiatric disability other than PTSD. Unlike the varicose veins in Barr or dislocated shoulder in Jandreau, an acquired psychiatric disability is not a condition capable of lay diagnosis, nor is it the type of condition that can be causally related to military service without medical expertise. Davidson, 581 F.3d 1313; Buchanan, 451 F.3d 1331; Jandreau, 492 F.3d 1372. In this regard, a diagnosis of an acquired psychiatric disability other than PTSD requires medical expertise. Thus, the Board concludes that, although the Veteran is competent to report symptoms he experienced while in service and after service, his statements as to the etiology of any acquired psychiatric disability other than PTSD do not constitute competent evidence. As a layperson, he is not competent to provide evidence that requires medical knowledge because he lacks the requisite professional medical training, certification and expertise to present opinions regarding such matters. In conclusion, the Board finds that the preponderance of the evidence is against the claim for service connection for an acquired psychiatric disability, to include PTSD, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for an acquired psychiatric disability, claimed as bad nerves and post traumatic stress disorder (PTSD), is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs