Citation Nr: 1327712 Decision Date: 08/29/13 Archive Date: 09/05/13 DOCKET NO. 08-18 625 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N. L. Rippel, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from September 1965 to July 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision by the Hartford, Connecticut Regional Office (RO) of the Department of Veterans Affairs (VA). In characterizing the issue on appeal, the Board recognizes that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The claim was before the Board previously in October 2011. At that time, the Board reopened a claim of entitlement to service connection for PTSD and remanded the issue of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, to the RO via the Appeals Management Center (AMC). The claim has been returned to the Board for appellate review. FINDINGS OF FACT 1. A psychosis was not present in service or manifested within one year after the Veteran's discharge from service. 2. PTSD has not been present during the pendency of this claim. 3. Alcohol dependence/abuse was not caused or worsened by service-connected disability. 4. No other acquired psychiatric disorder present during the pendency of the claim is etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for PTSD have not been met. 38 U.S.C.A. §§ 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.3.04 (2012). 2. An acquired psychiatric disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1110, 1112 (West 2002); 38 C.F.R. §§ 3.303, 3.3.04, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the originating agency provided the appellant with all required notice by letters mailed in July 2005, June 2006 and June 2009. Although the Veteran was not provided complete notice until after the initial adjudication of the claim, the Board finds that there is no prejudice to him in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that following the provision of the required notice and the completion of all indicated development of the record, the originating agency readjudicated the Veteran's claim. There is no indication in the record or reason to believe that the ultimate decision of the originating agency on the merits of the claim would have been different had complete VCAA notice been provided at an earlier time. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim). The record also reflects that service treatment records and relevant post-service treatment records have been obtained. Records associated with an application for Social Security Administration (SSA) disability benefits were requested, but that agency could produce no records. The Veteran was informed of this fact in February 2012 and indicated that he had no records or relevant information in his possession. U.S. Army and Joint Services Records Research Center (JSRRC) was contacted for stressor verification and responded to VA in January 2012 indicating that verification of one of the Veteran's claimed Vietnam stressors was conceded. Additionally, he failed to report for a VA examination scheduled in connection with this claim in January 2012, after being informed of the date and time of the examination. The record reflects that the Veteran "refused exam this location" on January 20, 2012. However, he proceeded to present for treatment in later January and February 2012. He has not explained why he failed to appear for the examination or requested that the examination be rescheduled. The Court has held that VA's duty to assist a veteran in developing the facts and evidence pertinent to a veteran's claim is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). It is the responsibility of veterans to cooperate with VA. See Caffrey v. Brown, 6 Vet. App. 377, 383 (1994); Olson v. Principi, 3 Vet. App. 480, 483 (1992). Good cause for his failure to report for the examination has not been shown. The Board finds that no additional development, as for medical opinions or examinations, is necessary. Evidentiary development in this matter is complete to the extent possible. Neither the Veteran nor his representative has identified any additional, existing evidence that could be obtained to substantiate the claim. The Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the claim. Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303. Personality disorders are not diseases or injuries for VA compensation purposes. 38 C.F.R. § 3.303(c). Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) [i.e., under the criteria of Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)]; a link, established by medical evidence, between the veteran's current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d), (f). Corroboration of every detail of a claimed stressor, including an appellant's personal involvement, is not required; rather, a Veteran needs only to submit independent evidence of a stressful even that is sufficient to imply his or her personal exposure. Pentecost v. Principi, 16 Vet. App. 124 (2002), citing Suozzi v. Brown, 10 Vet. App. 307 (1997). The evidence necessary to establish the occurrence of a recognizable stressor during service to support a diagnosis of PTSD will vary depending upon whether a Veteran engaged in "combat with the enemy." See Gaines v. West, 11 Vet. App. 353, 359 (1998). Participation in combat, a determination that is to be made on a case-by-case basis, requires that a veteran have personally participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. See VAOPGCPREC 12-99 (October 18, 1999); Moran v. Principi, 17 Vet. App. 149 (2003). See also Sizemore v. Principi, 18 Vet. App. 264, 273-74 (2004). If VA determines that a veteran engaged in combat with the enemy and his alleged stressor is combat-related, then his lay testimony or statement is accepted as conclusive evidence of the stressor's occurrence and no further development or corroborative evidence is required-provided that such testimony is found to be "satisfactory," i.e., credible and "consistent with circumstances, conditions or hardships of service." See 38 U.S.C.A. 1154(b) (West 2002 & Supp. 2012); 38 C.F.R. 3.304(f)(1) (201); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). On July 13, 2010, VA published a final rule that amended its adjudication regulation governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the occurrence of the required in-service stressor. See 75 Fed. Reg. 39843 (July 13, 2010), and 75 Fed. Reg. 41092 (July 15, 2010) (correcting the effective and applicability dates from July 12, 2010 to July 13, 2010). The revisions apply to, among others, claims appealed before July 13, 2010, but not yet decided by the Board. The July 2010 amendment of 38 C.F.R. § 3.304(f) eliminates the requirement for corroborating evidence of the claimed in-service stressor if it is related to a veteran's, "fear of hostile military or terrorist activity." The new regulatory provision requires that a VA psychiatrist or psychologist, or contract equivalent, must confirm that the claimed stressor is adequate to support a diagnosis of PTSD; that the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service; and that the Veteran's symptoms are related to the claimed stressor. When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated on the evidence of record. 38 C.F.R. § 3.655. "Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability ... in the absence of a proof of present disability there can be no claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Court has held that the requirement for service connection that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior to the Secretary's adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Where a Veteran served for at least 90 days during a period of war and manifests a psychosis to a degree of 10 percent or more within one year from the date of termination of such service, such disease shall be presumed to have been incurred in or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); see also 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), citing Gilbert, 1 Vet. App. at 54. Analysis In this case, initially, the Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. As noted by the Board in the prior remand, the Veteran claimed multiple stressors for his PTSD. He has stated that he was exposed to bombing while stationed in Na Trang, Vietnam, in August 1966. He said that he was involved in the killing of a python in Tuy Ho in September 1966. He said that he was exposed to bullet fire in Tuy Ho in September 1966. Additionally, he said that he had a stressful experience involving Viet Cong in Tuy Ho in September 1966. His DD form 214 shows that he was a equipment operator in the Army and had a year of foreign service. His medals include the national defense service medal, Vietnam Service Medal, Vietnam Campaign Medal and the Good Conduct Medal. They do not reflect combat on their face. However, subsequent to the Remand, the U.S. Army and Joint Services Records Research Center (JSRRC) verified events related to the Veteran's claim that he was exposed to bombing while stationed in Na Trang, Vietnam in August 1966. As such, one of his stressors is conceded. Since the Veteran has a valid in-service stressor, the Board will now address whether he has PTSD. Although the record contains some evidence relevant to whether he may have PTSD, the preponderance of the record is against such a finding. It is undisputed that a VA treatment record from February 2006 lists a diagnosis of PTSD. However, the overwhelming bulk of the treatment notes are replete with reference to the Veteran being diagnosed with alcohol abuse and schizophrenia and to a lesser extent dementia. Service treatment records (STRs) indeed include an entrance examination showing that the Veteran affirmed having some nervous trouble with psychosomatic complaints not considered disabling, and was evaluated as unremarkable. At separation in July 1967, he was within normal limits and there was no diagnosis, despite the fact that he endorsed depression or excessive worry, nightmares, sleep and nervous trouble in his reported history. As such, the Board concludes that STRs show no psychiatric disorder, including PTSD. In a 1984 claim for benefits, the Veteran reported that he was treated privately for a nervous condition in 1977 and 1978. Records could not be located confirming such treatment. Records from a private facility in Boston do show in 1987 he reported filing for VA posttraumatic syndrome at VA. In January 1987 he reported that he had a history of PTSD due to Vietnam and was turned down for SSA and VA benefits. The impression was healthy male with questionable PTSD. In April 1987, when he requested additional treatment at the ambulatory care center, the impression was homeless and post traumatic syndrome, refer to mental health outreach. It was noted that he had been in detox in Connecticut. VA treatment records dated from 1982 to 1988 show that the Veteran was in and out of jail for minor crimes, lived on the streets and abused alcohol. Nonetheless, he would present at VA facilities seeking psychiatric admission intermittently, to include in April 1982 and September 1984. In 1984, he included a complaint of flashbacks from Vietnam. Diagnosis was deferred. In April 1988 he was seen at a VA mental hygiene clinic requesting treatment. He was reportedly attempting to establish service connection for PTSD. The Veteran was evasive on questioning, and the diagnosis was attempting to establish service connection for PTSD. The Veteran presented for inpatient treatment again in July 1994, citing that he thought he had PTSD. The diagnosis was rule out PTSD, rule out psychotic illness (schizotypical PD) and ETOH dependence. He was referred for mental health assessment which showed that he reported vague paranoid ideation, visual hallucinations that do not bother him, no homicidal or suicidal ideation and no history of attempts, and was future oriented. The Veteran underwent VA examination for PTSD in July 1998. The examiner noted that the Veteran had been apparently drinking the day of the examination but denied having alcohol in the past 24 hours. A breathalyzer showed 0.075 which indicated alcohol in the past 6 hours. He still denied that he had alcohol when faced with this fact. He did admit that he frequently drank heavily. He was living in a hotel and eating at a soup kitchen for the most part. The examiner concurred with the past diagnoses of schizophrenia, undifferentiated type, alcoholism with physiologic dependence and possible alcohol-related withdrawal psychosis or exacerbation of his underlying disorder. As to PTSD, the examiner stated that the Veteran had a significant problem with his delusional system. He noted the mention of affirming nightmares, etc, on the service separation examination may have been evidence of some signs and symptoms of PTSD and the Veteran may in fact suffer ongoing symptoms which would constitute PTSD, and this could be perhaps be determined if it were possible to examine him in a state in which he were not drinking and was properly medicated for his psychotic disorder. The examiner recommended therefore, a treatment plan including detoxification and treatment of schizophrenia. The Veteran would not agree to this and insisted his only problem was PTSD. The examiner felt there was no point to future examinations until the Veteran was detoxed and treated for his schizophrenia. Ongoing VA treatment records dated through 2000 are replete with reference to intermittent VA visits with findings of alcohol dependence and schizophrenia but not PTSD, such as an April 1999 hospitalization for chronic paranoid schizophrenia and alcohol dependence. In January 2005, the Veteran sought treatment after having been imprisoned for the past 16 months for assault of a nurse. He had also been imprisoned at another facility for 2 years prior to that for similar behavior. He appeared clinically stable, had no complaints or stressors and was seeking help. The impression was ETOH dependent and schizoaffective by history. He was not interested in treatment but wanted to engage in the community reintegration program. He wanted to work in his pre-incarceration profession of tool making but had not worked since 1978. A March 2005 interdisciplinary note reflects a care plan that included findings of: unemployment demonstrated by inability to find and maintain competitive employment due to history of chronic paranoid schizophrenia, alcohol dependence, prolonged PTSD and psychosis, NOS. A plan was set forth. Subsequent treatment records in 2005 do not show diagnoses of PTSD but continue to show diagnoses of alcohol abuse, and antisocial personality. The Veteran was arrested for minor public nuisance charges in April and August 2005. Also in April 2005, he was brought in by ambulance and was put in restraints at VA after becoming physically and verbally aggressive with staff. He was intoxicated and violent. He was noted to have diagnoses of psychotic spectrum, ETOH dependence and antisocial personality traits. A February 2006 VA treatment referred to as a primary care clinic nurse practitioner's initial assessment lists a diagnosis of PTSD and notes the Veteran was to follow-up appointment at the mental health clinic. A VA psychiatric evaluation in November 2007 reveals that the Veteran's descriptions of PTSD appear to be disorganized and delusional. He reported he drank heavily in the past because he had nothing else to do. The diagnosis was schizophrenia and alcohol dependence in remission. A VA neuropsychological evaluation in November 2008 yielded a finding of mild dementia. In accordance with the Board remand, the AMC verified the Veteran's stressor. Thereafter, the Veteran failed to report for a psychiatric VA examination scheduled for January 2012. Later in January 2012, and into February 2012, he was treated for alcohol abuse with no diagnosis of PTSD. Because the Veteran failed to report for the VA examination, the Board has no choice but to base its decision on the evidence of record. In this case, the preponderance of the evidence is against a finding that the Veteran has PTSD. Specifically, the Board observes that the overwhelming weight of the psychiatric treatment record shows that the Veteran does not have a current disability of PTSD, and has not had the disability at any time within the pendency of his claim for service connection for that disability. The record shows that the Veteran suffers from schizophrenia and alcohol abuse. Although a February 2006 VA primary care clinic nurse practitioner's initial assessment listed a diagnosis of PTSD and ordered follow-up mental health clinic evaluation, VA psychiatric evaluation in November 2007 revealed that the Veteran's descriptions of PTSD appear to be disorganized and delusional and the diagnosis was schizophrenia and alcohol dependence in remission. Additionally, A VA neuropsychological evaluation in November 2008 yielded a finding of mild dementia. The competent medical evidence of record does not show that the Veteran currently has a diagnosis of PTSD within the meaning of VA regulations. The Board again acknowledges that the February 2006 VA intake medical record showing a diagnosis of PTSD in 2006. However, this medical evidence does not reflect that a comprehensive mental health evaluation was undertaken, and does not show that the PTSD diagnosis meets the requirements of 38 C.F.R. § 4.125. In contrast, the Board finds that the subsequent comprehensive assessment of the Veteran's mental condition did not diagnose the Veteran with PTSD. Overall, the Board finds that the preponderance of the competent medical evidence of record shows that PTSD has not been present during the period of this claim. As to the psychosis present, schizophrenia, there is no competent evidence that this was manifested in service or within a year of separation from service, and no competent evidence relates it to service. As to alcohol abuse, there is no evidence of a relationship between this and service. Inasmuch as there is mention of personality disorder in the treatment record, personality disorders are not diseases or injuries for VA compensation purposes. 38 C.F.R. § 3.303(c). The Board does not deny the Veteran's competence to report that he experiences symptoms such as anxiety and confusion, but there is no psychiatric disability diagnosed in this record that is related to service. Therefore, the Board concludes that the preponderance of the evidence is against the claim that a psychiatric disability has been present at any time during the pendency of the claim. With respect to whether the Veteran's own statements can establish a current disability here, in Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007), the Federal Circuit determined that 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 (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (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. The relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is a fact issue. In this case, the criteria under Jandreau have not been met. A current disability has not been established as to PTSD, and the Veteran's statements as to his symptoms do not show PTSD when in fact the record shows multiple other nonservice-connected psychiatric disabilities. The evidence available to evaluate the Veteran's claim has been significantly affected by his failure to undergo VA examination. The Board has no choice but to decide the claim based upon the current evidence of record, in accordance with 38 C.F.R. § 3.655, which is unfortunate in that there are no clinical records or VA examination establishing a current diagnosis of PTSD related to the Veteran's reported psychiatric symptoms or that the current psychiatric diagnoses are related to service. Thus, the claim must fail. As the Veteran has not shown current PTSD disability for which service connection can be granted, and as the current psychiatric disabilities are not related to service, the claim for service connection for a psychiatric disability, to include PTSD, must be denied. The Board has duly considered the benefit of the doubt doctrine. 38 U.S.C.A. § 5107; see also Gilbert, supra. However, the preponderance of the evidence is against the Veteran's claim, so that doctrine is not applicable to this claim. The claim must be denied. ORDER Service connection for an acquired psychiatric disability, to include PTSD is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs