Citation Nr: 1327969 Decision Date: 09/03/13 Archive Date: 09/10/13 DOCKET NO. 10-04 414 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for headaches, to include as due to a qualifying chronic disability (claimed as an undiagnosed illness). 3. Entitlement to service connection for joint problems, to include as due to a qualifying chronic disability (claimed as an undiagnosed illness). 4. Entitlement to service connection for a skin disorder, to include as due to a qualifying chronic disability (claimed as an undiagnosed illness). 5. Entitlement to a compensable rating for soft tissue keloid scar secondary to skin graft to the right foot. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Michel, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1988 to December 1988 and from March 2003 to May 2004. This case comes before the Board of Veterans' Appeals (Board) on appeal of a May 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas that in pertinent part granted service connection for soft tissue keloid scar secondary to skin graft to the right foot and assigned a noncompensable evaluation from the date of service connection, September 5, 2008, and denied service connection for the remaining issues on appeal. In his January 2010 formal appeal, VA Form 9, the Veteran requested a Travel Board hearing; however, he cancelled his request in February 2010. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The issue of entitlement to service connection for PTSD is herein decided; all remaining issues are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The evidence of record fails to establish that the Veteran has a PTSD diagnosis under the criteria set forth in the Diagnostic and Statistical Manual of Mental Disorders. CONCLUSION OF LAW PTSD was not incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 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 specifically to 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 that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) 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 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 Veteran with the notice required under the VCAA, to include notice regarding the disability-rating and effective-date elements of his claim, by letter mailed in September 2008, prior to the initial adjudication of the claim. The Board also notes that service treatment records have been obtained, as well as pertinent post-service records, and the Veteran has been afforded adequate VA examinations. Neither the Veteran nor his representative has identified any other evidence that could be obtained to substantiate his claims. The Board is also unaware of any such evidence. Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. Accordingly, the Board will address the merits of the claim. Legal Criteria Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). There are particular requirements for establishing PTSD in 38 C.F.R. § 3.304(f) that are separate from those for establishing service connection generally. Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). Establishing service connection for PTSD requires (1) a diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a) (which requires a diagnosis consistent with DSM-IV); (2) credible supporting evidence that the claimed in-service stressor(s) actually occurred; and (3) medical evidence of a causal nexus between current symptomatology and the claimed in-service stressor(s). 38 C.F.R. § 3.304(f). If the evidence establishes that the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f) (1). See also 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d) (pertaining to combat Veterans). 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; 38 C.F.R. § 3.102; 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. The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Analysis In this case, the Veteran's DD Form 214 shows that his military occupational specialty (MOS) was infantryman, his personnel file shows receipt of the Combat Action Badge, and he served in an imminent danger pay area; moreover, the Veteran's claimed stressors relate to his combat with the enemy. Therefore, the combat stressor is conceded and the remaining question is whether the Veteran has a valid diagnosis of PTSD related to these combat stressors. See VA Adjudication Manual Rewrite, M21-1MR, Part IV, Subpart ii, 1.D.13.d (June 6, 2011). VA treatment records show that the Veteran had a positive PTSD screening in July 2008. The Veteran was afforded a VA examination in January 2009 in which he reported witnessing a child being killed in service. He reported being irritable with his spouse and child, working for the police department, and denied any functional impairment related to mental problems. The examiner stated that a review of psychological symptoms showed denial of any serious symptoms of emotional distress and this was consistent with psychological testing. The VA examiner opined that the Veteran did not have PTSD; he did have some features and symptoms, but these symptoms did not cause him to be functionally impaired. The VA examiner stated that there was no diagnosis on Axis I. In a January 2009 VA polytrauma physical medicine and rehabilitation resident note, the Veteran was seen for a polytrauma follow-up. Insomnia and irritability were noted. A diagnosis of PTSD was listed. In August 2009, a mental health evaluation was conducted by an Advanced Practice Nurse and cosigned by a psychiatrist. The Veteran reported having nightmares and flashbacks based on his combat experience and witnessing the death of a child. After discussion of his symptoms and military experience, he was diagnosed with PTSD. The Veteran was afforded a VA examination in December 2009 in which the examiner noted somewhat more symptomology since the last evaluation. The examiner stated that the Veteran was not reporting significant occupational problems and completed normal activities of daily living without significant impairment and was fully independent. The VA examiner opined that while the Veteran reported some symptoms of PTSD, he did not describe clinically-significant social or occupational problems to a severe-enough degree to warrant diagnosis. There was mild irritability, but this appeared to be handled well. The examiner stated that the Veteran did meet the exposure criteria for PTSD, reported involvement in combat, and reported feeling horrified when he saw a child that was killed; however the Veteran did not report sufficient symptoms to warrant a full diagnosis of PTSD nor did he describe sufficient social dysfunction to warrant such a diagnosis. The Board notes that in cases such as this where there are conflicting statements from medical professionals regarding whether the Veteran meets the DSM-IV criteria for PTSD, it is within the Board's province to weigh the probative value of those opinions. In Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993), the U.S. Court of Veterans Appeals stated: The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. . . . As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the adjudicators . . . . So long as it provides an adequate reason or basis for doing so, the Board does not err by favoring one competent medical opinion over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). Greater weight may be placed on one examiner's opinion over another depending on factors such as reasoning employed by the examiners and whether or not, and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). In weighing the evidence of record, the Board finds that the most probative evidence is against a finding that the Veteran has a diagnosis of PTSD in compliance with 38 C.F.R. § 4.125(a). In this regard, the PTSD screening in July 2008 was conducted by a social worker, was based upon four questions, and did not involve a thorough examination as did the January and December 2009 VA examinations conducted by Dr. M.S.R., Doctor of Philosophy (PH.D.) and Dr. J.P.D., Doctor of Psychology (Psy.D.) To this point, the Board notes that the VA social worker was within her sphere of expertise in assessing the Veteran's psychiatric needs, but is less qualified than a PH.D. and Psy.D. in assessing psychiatric disabilities. The Board also observes that although the January 2009 VA treatment record shows a PTSD diagnosis, with complaints of insomnia and irritability, the record does not indicate upon what basis such diagnosis was made. In assessing evidence such as medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). In fact, 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). Therefore, the Board finds that the probative value of such evidence with regard to whether the Veteran has a valid PTSD diagnosis is limited. Moreover, in the August 2009 mental health evaluation, multiple areas of importance in assessing the Veteran (conflict or problems involving childhood/developmental history; sexual/physical/emotional abuse history; conflict or problems involving current environment, living situation; conflict or problems involving usual social, peer-group and environmental setting; conflict or problems involving legal, financial, employment issues; conflict or problems involving religious, spiritual or cultural issues; and conflict or problems involving leisure and recreation issues) noted "needs further assessment" before notes were recorded for some of the categories. Record review was "remote records and current chart". Although the aforementioned VA treatment records indicated that the Veteran did meet the criteria for PTSD, the Board observes that the examiners did not review the Veteran's entire claims file prior to evaluating the Veteran or determining that he met the criteria for PTSD. However, the Board acknowledges that "it is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion." See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). To this point, when assessing the probative value of a medical opinion, the thoroughness and detail of the opinion must be considered. The opinion is considered probative if it is definitive and supported by detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Here, the August 2009 diagnosis of PTSD is not considered probative as it was based upon an incomplete analysis of the Veteran's mental state. That is, because multiple areas of importance in evaluating the Veteran "needed further assessment", the diagnosis of PTSD was not based upon thorough and detailed examination. By contrast, the Board observes that the January and December 2009 VA examiners' opinions regarding whether the Veteran met the criteria for PTSD were made after a complete review of the Veteran's claims file and complete psychological evaluations. They supported their opinions that the Veteran did not meet the criteria for a diagnosis of PTSD with sound rationale, to include the Veteran's own denial of any functional impairment related to mental problems and denial of any serious symptoms of emotional distress. Moreover, the Veteran did not report significant occupational problems, completed normal activities of daily living without significant impairment, and was fully independent. For these reasons, the Board has placed greater weight on the January and December 2009 VA examiners' opinions. Thus, the weight of the competent evidence is against a finding that the Veteran has a current PTSD diagnosis. As a result, the claim must fail. The Board recognizes the Court has held that the presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis may be negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). However, where the overall record fails to support a diagnosis of the claimed disability, that holding is inapplicable. In addition to the competent medical evidence on the issue of diagnosis, the Board has considered the Veteran's statements regarding his symptoms. The Board acknowledges that the Veteran is competent to give evidence about what he experienced; for example, he is competent to discuss his psychiatric symptoms. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). Moreover, the Federal Circuit Court has held that in certain situations, lay evidence can even be sufficient with respect to establishing medical matters such as a diagnosis. Specifically, in Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit commented that competence to establish a diagnosis of a condition can exist 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. See also Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that a layperson may comment on lay-observable symptoms). Similarly, the Court of Appeals for Veterans Claims has held that, 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 (2007). As the Veteran is not shown to be other than a layperson without the appropriate medical training and expertise, he is not competent to render a probative (i.e., persuasive) opinion on a medical matter. See, e.g., Bostain v. West, 11 Vet. App. 124, 127 (1998). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). In the present case, although the Veteran's reported psychiatric symptomatology is found to be capable of lay observation, the diagnosis of PTSD is not within the province of a layperson, and thus his statements to the effect that he has a diagnosis of PTSD are not competent evidence. This is because the differentiation of psychiatric symptoms and the overall effects on one's life are complex medical issues which require expertise; unlike flat feet, varicose veins, and ringing of the ears. In addition, his service treatment records show no evidence of symptoms of PTSD during his active military service. The Board fully recognizes that the Veteran receives current psychiatric treatment that is of great benefit to his life, and in no way means to diminish the importance of that treatment. The regulations that govern entitlement to service connection for PTSD, however, are clear. The diagnosis must be established in accordance with 38 C.F.R. § 4.125(a), which requires a diagnosis consistent with the American Psychiatric Association's criteria established in the DSM-IV. In this case, the Veteran's treating diagnosis does not meet that criteria. The Board has considered the doctrine of giving the benefit of the doubt to the Veteran, under 38 U.S.C.A. § 5107 and 38 C.F.R. § 3.102, but does not find that the evidence is of such approximate balance as to warrant its application. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for PTSD and the claim must be denied. ORDER Entitlement to service connection for PTSD is denied. REMAND The Board is of the opinion that additional development is required before the Veteran's remaining claims are decided. The Veteran asserts that he is entitled service connection for headaches, joint problems, and a skin disorder. Specifically in a July 2013 brief, located in the Veteran's Virtual VA electronic claims file, it is asserted that the noted disorders are related to an undiagnosed illness caused by his service in the Persian Gulf. Thus, this raises a new presumptive theory of entitlement to service connection. See 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317 (presumption for a "qualifying chronic disability," which includes an undiagnosed illness or a medically unexplained chronic multi-symptom illness whether diagnosed or not). "Qualifying chronic disability" includes: (a) an undiagnosed illness; (b) a "medically unexplained chronic multisymptom illness" (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms; or (c) any diagnosed illness that the Secretary determines, in regulations, warrants a presumption of service connection. The term "medically unexplained chronic multisymptom illness" means a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. 3.317(a) (2). The Board notes that the Veteran's service awards and decorations generally indicate not only overseas service, but service in the Persian Gulf region during the time period required to support a claim for service connection for an undiagnosed illness. 38 C.F.R. § 3.317. Accordingly, the RO or the AMC should furnish the required information about "qualifying chronic disability" under 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317 to the Veteran. 38 C.F.R. §§ 19.9, 19.29 (2012). In addition, the Veteran's most recent VA examination to determine the degree of severity of his soft tissue keloid scar secondary to skin graft to the right foot was performed in December 2009. In correspondence to VA in 2010, the Veteran stated that his disability had worsened to include pain on both feet, the use of shoe inserts, and soaking his feet and rubbing them with oil to relieve some pain. In light of this evidence suggesting that the Veteran's disability has increased in severity since the most recent VA examination, the Board has determined that the Veteran should be afforded another VA examination to determine the current degree of severity of his soft tissue keloid scar secondary to skin graft to the right foot. Accordingly, this case is remanded to the RO or the AMC for the following actions: 1. Undertake appropriate development to obtain any outstanding medical records pertaining to treatment or examination of the Veteran for headaches, joint problems, skin disorder, and soft tissue keloid scar secondary to skin graft to the right foot. 2. Issue the Veteran a VCAA notice letter with regard to the theory of service connection as due to a "qualifying chronic disability," which includes: (a) an undiagnosed illness; and (b) a "medically unexplained chronic multisymptom illness." 3. Then, arrange for the Veteran to be afforded a VA examination in order to ascertain the current severity of the service-connected soft tissue keloid scar secondary to skin graft to the right foot. The claims folder must be made available to and reviewed by the examiner, and any indicated studies should be performed, to include X-ray examination. All appropriate diagnostics should be accomplished and all clinical findings should be reported in detail. Of particular interest is whether the Veteran's current symptoms of pain in his right foot and the need for shoe inserts is related to his service-connected foot disability (i.e., soft tissue keloid scar secondary to skin graft to the right foot.) 4. Arrange for the Veteran to be afforded a VA examination in order to ascertain whether his complaints of joint pain, headaches, and skin disorder are due to a qualifying chronic disability under 38 C.F.R. § 3.317. The claims folder must be made available to and reviewed by the examiner. Current VA Gulf War Examination Guidelines must be followed. All indicated tests should be performed, and all findings reported in detail. The physician shall be requested to prepare an opinion supported by a rationale on the following: (a) Whether it is at least as likely as not that the Veteran currently has or has had at any time during the pendency of the claim a joint pain, headaches, or skin disorder due to or as a result of an injury or disease incurred in service; (b) Whether the Veteran has joint pain, headaches, or skin disorder due to an undiagnosed illness or a medically unexplained multisymptom illness. The examiner shall identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching a conclusion. The absence of evidence of treatment in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. If an opinion cannot be expressed without resort to speculation, the physician must so indicate and discuss why an opinion is not possible. 5. Then, readjudicate the issues on appeal in light of all pertinent evidence and legal authority. If the benefits sought on appeal are not granted to the Veteran's satisfaction, he and his representative should be furnished a supplemental statement of the case and afforded the requisite opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for further appellate action. By this remand the Board intimates no opinion as to any final outcome warranted. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012). Department of Veterans Affairs