Citation Nr: 1327205 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 10-31 649 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a sleep disorder, to include insomnia. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Scott Shoreman, Counsel INTRODUCTION The Veteran had active service from June 1969 to September 1971. This matter comes before the Board of Veterans' Appeals (Board) from an April 2010 rating decision of the above Department of Veterans Affairs (VA) Regional Office (RO). In February 2009, the United States Court of Appeals for Veterans Claims (Court) ruled that when a claimant seeks service connection for PTSD, such a claim must 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" submitted by the claimant or obtained by VA. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). As explained below, the Veteran has been diagnosed as suffering from multiple psychiatric disorders. The Board has accordingly broadened his claim as shown above. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a videoconference hearing in May 2013. A transcript is of record. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. There is no probative evidence that the Veteran has an acquired psychiatric disability, to include PTSD, that is causally or etiologically related to service. 2. There is no probative evidence that the Veteran has a sleep disorder, to include insomnia, that is causally or etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disability, to include PTSD, have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 4.125 (2012). 2. The criteria for service connection for a sleep disorder, to include insomnia, have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2012); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must advise that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Id.; 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). Prior to initial adjudication of the Veteran's claims decided herein, letters dated in March 2010 and May 2011 fully satisfied the duty to notify provisions of VCAA. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In claims for PTSD based on personal or sexual assault, VA has a heightened duty to notify the Veteran. Gallegos v. Peake, 22 Vet. App. 329 (2008); 38 C.F.R. § 3.304(f)(5). Specifically, the special provisions set forth under the VA Adjudication Procedure Manual M21-1 (M21-1), Part III (Feb. 20, 1996) must be considered. 38 C.F.R. § 3.304(f)(5) (redesignated, as of July 13, 2010); 75 Fed. Reg. 39843 (July 13, 2010); Patton v. West, 12 Vet. App. 272 (1999) (special M21 manual evidentiary procedures apply in PTSD personal assault cases). VA will not deny a PTSD claim that is based on in-service personal assault without first advising the Veteran that evidence from sources other than service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing him the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. 38 C.F.R. § 3.304(f)(5). Although this heightened standard was not met by the March 2010 and May 2011 letters, the record does not show that the Veteran has been diagnosed with PTSD, and therefore he was not prejudiced by the lack of special notice. With respect to the duty to assist in this case, the Veteran's service treatment records, service personnel records, VA treatment records, and private treatment records have been obtained and associated with the claims file. The Veteran was also provided with a VA examination in June 2010 in conjunction with his claim. The examiner provided well-reasoned rationales for her opinions. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Veteran has not made the RO or the Board aware of any additional pertinent evidence that needs to be obtained in order to fairly decide the issues addressed in this decision, and has not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced him in the adjudication of these issues. As there is no indication that there are additional records that need to be obtained that would assist in the adjudication of the claims, the duty to assist has been fulfilled. The Veteran has been afforded a hearing before a VLJ in which he presented oral argument in support of his claims. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2010) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ noted that basis of the prior determinations and noted the elements of the claims that were lacking to substantiate them. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim, such as post-service treatment records. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) nor has identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claims and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims for service connection. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the claims based on the current record. II. Service Connection Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). In addition, if a Veteran served 90 days or more, and certain disorders, including psychoses, become manifest to a degree of 10 percent or more within one year from date of termination of such service, then such diseases shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2012). The various diagnoses for the Veteran's claimed psychiatric disorder have included a depressive disorder, NOS and anxiety disorder, NOS. The Veteran specifically claimed service connection for PTSD. PTSD is categorized as one of several psychiatric disorders listed as an anxiety disorder by DSM-IV. Establishing service connection specifically for PTSD requires that there be (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; (3) and credible supporting evidence that the claimed in-service stressor actually occurred. 38 C.F.R. § 3.304(f); see also Cohen v. Brown, 10 Vet. App. 128, 138 (1997). The diagnosis of a mental disorder must conform to the Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV) and be supported by the findings of a medical examiner. See 38 C.F.R. § 4.125(a) (2012). In adjudicating a claim for service connection for PTSD, 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); 38 C.F.R. §§ 3.303(a), 3.304. To establish service connection for PTSD, the evidence necessary to establish the occurrence of a recognizable stressor during service to support a diagnosis of PTSD will vary depending upon whether or not the Veteran engaged in "combat with the enemy." If the evidence establishes that the Veteran engaged in combat with the enemy, and the claimed stressor is related to that combat, then, 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 C.F.R. § 3.304(d); see also 38 U.S.C.A. § 1154(b) (West 2002); VAOPGCPREC 12-99. In this case, the claimed stressors are not related to an engagement in combat. Consequently, the Veteran's lay testimony alone is not sufficient for purposes of establishing the occurrence of the alleged stressor. See Moreau v. Brown, 9 Vet. App. 389, 395 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). In such cases, the record must contain service records or other evidence as to the occurrence of the claimed stressor. See West (Carlton) v. Brown, 7 Vet. App. 70, 76 (1994); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). During the pendency of this claim, effective July 13, 2010, VA amended 38 C.F.R. § 3.304(f) by liberalizing, in certain circumstances, the evidentiary standards for establishing the occurrence of an in-service stressor for non-combat Veterans. See 75 Fed. Reg. 39,843-39,852 (effective July 13, 2010). The amended version of 38 C.F.R. § 3.304(f)(3) eliminated the need for stressor corroboration in the case of circumstances in which the Veteran's claimed in-service stressor is related to "fear of hostile military or terrorist activity." The present case does not, however, involve a claimed stressor involving the fear of hostile military or terrorist activity. Therefore the amended version of 38 C.F.R. § 3.304(f)(3) does not apply and need not be discussed. The Veteran's reported stressors involve a personal assault. When a PTSD claim is based on an in-service personal assault, evidence from sources other than the Veteran's service records may corroborate an account of a stressor incident. 38 C.F.R. § 3.304(f)(5). Furthermore, after-the-fact medical evidence can be used to establish a stressor based on personal assault. See Bradford v. Nicholson, 20 Vet. App. 200 (2006); Patton v. West, 12 Vet. App. 272, 278 (1999). Disorders diagnosed after discharge may still be service connected if all of the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). The Veteran claims entitlement to service connection for PTSD on the basis of suffering from racial discrimination and being handcuffed and physically transported to a duty assignment after breaking bones in his fingers. The service treatment records show that in August 1970 the Veteran had a psychiatric evaluation for drug abuse and personality disorder. The Veteran had recently been absent without leave (AWOL) for five days, and he was apprehended with a small amount of marijuana. He said he went AWOL because of impending duty aboard the Portland Light Ship, which he felt would be intolerable. The Veteran cited racial discrimination and a general dislike for the service. The examiner's impression of the Veteran was personality disorder, paranoid personality. He had problems of hostility, resentment and projection, and his adjustment had been borderline to date. It was felt that the Veteran had no incentive to change and would have more difficulties in the future. The service treatment records do not show further psychiatric treatment or complaints or treatment related to a sleep disorder. The service personnel records show that in June 1971 the Veteran requested a psychiatric observation and evaluation because he said he was unable to cope with being in the Coast Guard, and he reported that he faced racial prejudice. In August 1971 the Veteran was recommended for a special discharge for unfitness. It was noted that the Veteran had been AWOL for four days in July 1970, before being apprehended by the local police. After a two week assignment to a light vessel, the Veteran threatened to go AWOL if he had to return, and he was subsequently reassigned to a light station, where the officer in charge had difficulty getting him to work and where he was frequently late returning from compensatory absences. In September 1971 the Veteran pleaded guilty at a special court martial to an unexcused absence of 23 days and to missing the departure of a ship. Also of record is a letter that the Veteran wrote during service to the NAACP in which he described being treated more harshly for a uniform violation than a white serviceman would have been. He also wrote of being charged with being AWOL after receiving permission to return late from a family visit. Post-service treatment records show that the Veteran first sought VA psychiatric treatment in March 2002. It was noted that he had no prior psychiatric history and that his stressors included the death of his stepfather, his mother having a nervous breakdown, financial problems, and accusations of assault. The Veteran was noted to have insomnia, a depressed mood, and preoccupation with multiple problems. He had been taking Valium for insomnia since September 2001. The psychiatrist's impression was polysubstance abuse and depressive disorder, NOS. He felt that drug abuse most likely contributed significantly to the Veteran's mood disorder. The Veteran continued VA psychiatric treatment. The treatment records do not reference incidents from the Veteran's military service. At August 2005 VA primary care treatment the Veteran was noted to be very depressed, and he requested more Valium to help him sleep. August 2005 psychiatric treatment records indicate that the Veteran's diagnosis was polysubstance abuse and depressive disorder, NOS, moderate. Social stressors such as personal relationships and drug use were discussed. These and ongoing VA treatment records to 2010 do not contain discussion of incidents from service or indication from the treatment records that the psychiatric disabilities were related to service. In January 2010 the Veteran said in a VA suicide prevention phone call that he was upset about the prospect of his VA claim being denied, about his financial situation, and about his Valium being stolen out of his locked nightstand. The Veteran stated during an April 2010 VA hospitalization related to his kidneys that he needed something to help him sleep. It was noted that the Veteran had a long history of poor coping skills and chronic substance abuse and that his worsening medical problems would put more stress on his limited ability to cope. He was diagnosed with adjustment disorder with depressed and anxious mood, polysubstance dependence, and mood disorder, NOS, rule out primary vs. secondary to polysubstance dependence. At June 2010 VA treatment the Veteran was diagnosed with recurrent major depressive disorder, generalized anxiety disorder and past substance abuse, exacerbated and complicated by end stage renal failure. No opinion was given on etiology and there was no discussion of the Veteran's service. At a June 2010 psychiatric evaluation for a possible kidney transplant the Veteran reported problems with waking up in the middle of the night and not being able to get back to sleep, and he self medicated with cannabis. The Veteran had a VA examination in June 2010. The claims file was not available for review but the examiner felt that an extensive evaluation for a kidney transplant from earlier in the year gave sufficient background information. The Veteran had kidney failure and was undergoing dialysis three times a week, and he felt that he was not dealing with this well. He also describe difficulties with his family and living situation. The examiner also noted that Veteran's reports of racial discrimination from his Coast Guard service. On examination the Veteran was alert and oriented and his recent and past memory was intact. There were no gross psychotic processes such as delusions or hallucinations, and his current mood was "angry." The Veteran had nightmares about a variety of things, including those that occurred during his military service. He denied current suicidal or homicidal ideation. The examiner diagnosed the Veteran with depressive disorder, NOS and anxiety disorder, NOS. It was noted that the Veteran had end stage renal disease and a longstanding history of polysubstance abuse. The Veteran's military records were indicative of a pattern of discrimination. However, the examiner felt that the current mental health picture was primarily a reflection of physical health problems, such as end stage renal failure, and the physical problems prevented the Veteran from working. August 2010 VA psychiatric treatment states that the Veteran's current stressors were that his ex-wife, two children and grandchildren were living with him, his financial situation, his kidney illness, and his history in the Coast Guard and issues with prejudice. The diagnosis was recurrent major depressive disorder, generalized anxiety disorder, and past substance abuse, exacerbated and complicated by end stage renal failure. VA treatment records show that the Veteran has continued to take Valium due to difficulties sleeping. October 2010 VA primary care treatment notes indicate that the Veteran said he needed a letter stating that the physician had been talking to him about PTSD and depression. Subsequent VA treatment records show that the Veteran has continued to undergo mental health treatment. The Veteran testified at the May 2013 hearing that he felt no discrimination in the factory job he had prior to being the Coast Guard, which contrasted with the experiences he had during service. On review of the record, the Board finds that the preponderance of the evidence is against a finding that any acquired psychiatric disorder, to include PTSD, is related to service. There is no diagnosis of PTSD of record, including no diagnosis that explicitly conforms to DSM-IV criteria. Since the record does not show that the Veteran has PTSD, service connection for that disorder is not warranted. See 38 C.F.R. § 4.125. The Veteran does, however, have other diagnosed psychiatric disorders. While he had a psychiatric evaluation during service at which he was diagnosed with a personality disorder, there is no evidence that the Veteran was treated for a chronic psychiatric condition in service. The post-service treatment records of record indicate that even when the Veteran underwent psychiatric treatment, there is no finding that the Veteran's psychiatric condition resulted from any incident or disease that occurred in service. In fact, the treatment records show that the Veteran seldom mentioned any incidents from service at psychiatric treatment and instead more often discussed things such as family and finances. Probative value can be given to the VA examiner's June 2010 opinion. While the examiner did not review the claims file, the examination report shows that she was familiar with the Veteran's history. Furthermore, the examiner found the Veteran's reports of suffering racial discrimination during service to be credible. However, the examiner felt that the Veteran's diagnosed depressive disorder, NOS and anxiety disorder, NOS were primarily due to his current physical health problems. See Nieves-Rodriguez, 22 Vet. App. at 304 ("...[M]ost of the probative value of a medical opinion comes from its reasoning" and the Board "must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion."). Regarding any diagnosed personality disorder, they are considered congenital or developmental defects and not diseases or injuries for VA compensation purposes. See 38 C.F.R. § 3.303(c), 4.9 (2012); see also Winn v. Brown, 8 Vet. App. 510, 516 (1996). Further, there is no evidence that an acquired psychiatric disorder was incurred or aggravated in service and superimposed in service upon a preexisting personality disorder. The Board also notes that while the Veteran has been treated for a sleep disorder, the treatment records do not give any indication that it is related to service. The record does not show that the Veteran was treated for a sleep disorder until 2001. In this regard, evidence of a prolonged period without medical complaint, and the amount of time that elapsed since military service, can be considered as evidence against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). While the Veteran's sleep disorder, including insomnia, may be related to a psychiatric disability, the preponderance of the evidence is against it being related to service. While the Veteran has made statements to the effect that he has an acquired psychiatric disability and sleep disorder related to his Coast Guard service, he is not competent to make such determinations. His statements on etiology are therefore not afforded probative value. See Jandreau, 492 F.3d at 1376-77; citing Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir.2006)) (though the Federal Circuit held that lay evidence may be competent to establish a diagnosis of a condition, it did not state that lay evidence may be used to determine medical etiology). Because the evidence preponderates against the claim of service connection for an acquired psychiatric disability, to include PTSD, and a sleep disorder, including insomnia, the benefit-of-the-doubt doctrine is inapplicable, and the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for an acquired psychiatric disability, to include PTSD, is denied. Service connection for a sleep disorder, to include insomnia, is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs