Citation Nr: 1328410 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 05-08 317 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Brian J. Milmoe, Counsel INTRODUCTION The Veteran served on active duty from November 1969 to November 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision entered in May 2004 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, denying the Veteran's claims for service connection for PTSD and a dysthymic disorder. Jurisdiction over the claims folder is currently held by the RO in Lincoln, Nebraska. In February 2007, the Board remanded this case for additional development and while the case remained in remand status, service connection was granted for a dysthymic disorder by rating action undertaken in April 2010. Following a return of the case to the Board, it entered a final decision in October 2010 denying the claim for entitlement to service connection for PTSD. The Veteran appealed this denial to the U.S. Court of Appeals for Veterans Claims (Court). In July 2012, the Court issued a memorandum decision and therein vacated the Board's October 2010 denial of the claim. The case was then remanded to the Board and in order to comply fully with the Court's decision, the Board in March 2013 remanded the case to the VA's Appeals Management Center (AMC) located in Washington, DC, so that further development could be conducted. Following the AMC's completion of the actions requested, the case has since been returned to the Board for further review. In a written brief presentation of June 2013, the Veteran through his service representative raised issues involving his entitlement to an initial rating in excess of 30 percent for a dysthymic disorder and to a total disability rating for compensation based on individual unemployability due to service-connected disablement. As neither of these issues is within the Board's appellate jurisdiction, given that the RO has not been afforded the opportunity to initially develop or adjudicate either matter, no further consideration as to either issue is herein afforded. Rather, those issues are specifically referred to the RO for initial consideration. FINDING OF FACT A preponderance of the evidence is a against a showing that the Veteran has PTSD. CONCLUSION OF LAW PTSD was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Remand Compliance This matter was previously remanded by the Board in February 2007 and most recently in March 2013 in order to facilitate the conduct of additional evidentiary and/or procedural development. Among the requested actions were the retrieval of service personnel records and certain VA treatment records, as well as the conduct of one or more VA examinations, followed by readjudication of the appellate issue. All of the actions previously sought by the Board through its prior development request now appear to have been completed as directed, and it is of note that neither the Veteran, nor his representative, contends otherwise. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notification obligation in this case was accomplished by way of the RO and AMC's correspondence, dated in January 2004, July 2005, March 2006, and March 2007, to the Veteran at his address of record. His claim was subsequently readjudicated, most recently in a supplemental statement of the case of May 2013. See Mayfield, 444 F.3d at 1333; Prickett v. Nicholson, 20 Vet. App. 370, 376-78 (2006). In light of the foregoing, and in the absence of any allegation of prejudice by the Veteran or his representative, the Board cannot conclude that any defect in the timing or substance of the notice provided affected the essential fairness of the adjudication, with resulting prejudice to the Veteran. VA has also provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The record includes the Veteran's service treatment and personnel records, the latter of which were sought based on the Veteran's specific request and his allegation that inservice use of illicit drugs began during a period of temporary duty in Schleswig, Germany. In addition, various medical examination and treatment reports compiled by VA and non-VA sources during postservice years have been obtained. Also a part of the record is the transcript of the RO hearing afforded the Veteran in April 2005 and the transcript of a travel board hearing conducted in July 2006. Moreover, the Veteran has not made the RO, AMC, or Board aware of any additional evidence that needs to be obtained in order to decide fairly the claim herein addressed on its merits. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). The record indicates that the Veteran has been provided multiple VA examinations in connection with his claim for service connection for PTSD herein addressed on the merits and no further VA examination is warranted at this time. The Veteran presents no argument in his most recent brief of June 2013 as to the adequacy of prior VA medical examinations, although it is noted that in early 2011 he argued before the Court that prior VA examination reports were inadequate due to various reasons, among which were a failure by a VA examiner to explain why Criterion "A" for a PTSD diagnosis, as set forth in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, (4th ed. 1994)(DSM-IV) had been met, and the VA's examiner failure to acknowledge entry of a diagnosis of PTSD during a course of treatment in a substance abuse program. However, review of the April 2010 examination does reflect the rationale offered by the VA examiner as to why Criterion "A" of DSM-IV was not met and it, too, is noted that the VA examiner, while not acknowledging the PTSD diagnosis entered during substance abuse therapy, did indicate that the records compiled as to that therapy were reviewed. Moreover, the same VA examiner again evaluated the Veteran in April 2013 and conceded that Criterion "A" had been met, and, again, he reported having reviewed the Veteran's claims filed and prior VA treatment reports, albeit without referencing the diagnosis of PTSD by S.P.S, M.D., a VA physician in the VA's Substance Abuse Treatment Clinic (SATC), who treated the Veteran. While specific acknowledgement of Dr. S's PTSD diagnosis of the Veteran may have added to the opinion, it was not an essential element, nor did the Board specifically direct that he identify or discuss Dr. S's diagnosis. It is clear that the VA examiners conducted full mental status evaluations and identified whether the Veteran met or did not meet each individual criterion outlined by the DSM-IV for entry of a PTSD diagnosis, and, on that basis, the VA examinations and the record as a whole are sufficient to permit the Board to evaluate the merits of the claim presented, without seeking additional development. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(4). In view of the forgoing, the Board finds that VA has satisfied its duties to notify and assist the Veteran under the governing law and regulations. Analysis Service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury or disease in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection also may be granted for any disease initially 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). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) which requires that a diagnosis of a mental disorder must be in conformity with DSM-IV criteria; a link, established by medical evidence, between current symptoms and an inservice stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). Service connection for PTSD requires a verified stressor unless a veteran engaged in combat and such combat is the alleged stressor. Id. Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). The requirement that there be a current disability is satisfied when the disability is shown at any time during the pendency of the claim, even though the disability subsequently resolves. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Alternatively, the nexus between service and the current disability can be satisfied by medical or lay evidence of continuity of symptomatology and medical evidence of a nexus between the present disability and the symptomatology. See Voerth v. West, 13 Vet. App. 117 (1999); Savage v. Gober, 10 Vet. App. 488, 495 (1997). 38 U.S.C.A. § 1154(b) provides that, in the case of a veteran who engaged in combat with the enemy during a period of war and the claimed disease or injury is combat-related, lay evidence of inservice incurrence or aggravation of a disease or injury shall be accepted if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the lack of official record of such incurrence or aggravation during service. In this instance, the Veteran does not allege, nor does it show, that the Veteran was engaged in combat against the enemy while in military service. To that extent, the pertinent provisions of 38 U.S.C.A. § 1154 are not for application. The standard of proof to be applied in decisions on claims for Veterans' benefits is set forth in 38 U.S.C.A.§ 5107. A Veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. Id., see also, 38 C.F.R. § 3.102. When a Veteran seeks benefits and the evidence is in relative equipoise, the Veteran prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran's principal allegation, as reflected in his claim documents and hearing testimony, is that an inservice motor vehicle accident leading to the death of a friend was the stressor that led to the onset of his PTSD. The Veteran acknowledges that he was not in the motor vehicle at the time of the accident, but had been riding therein and, because of erratic behavior of the driver of the vehicle, had demanded that the vehicle be stopped so he could remove himself. Assistance from a chaplain was then sought and he indicates that he was placed on temporary duty in Schleswig. He indicates that while undergoing substance abuse treatment by VA during 2004 he was diagnosed with PTSD by Dr. S.P.S. on the basis of the above-referenced inservice motor vehicle accident. Service department records do not identify any complaint, finding, or diagnosis of PTSD. Evidence developed postservice indicates that the Veteran was initially seen for evaluation on an outpatient basis in 2002, when he set forth a history of the inservice motor vehicle accident and prior substance abuse treatment; depression and substance abuse were clinically identified, but without any diagnosis of PTSD. The Veteran's continued involvement in the SATC program is shown subsequently, but a PTSD diagnosis is not shown in VA treatment records compiled during 2003. When evaluated by medical professionals, other than Dr. S.P.S. in March and April 2004, no PTSD was diagnosed. Dr. S.P.S. did indicate in treatment notes compiled later in 2004, including July, August, and December 2004, that the Veteran had PTSD, but no other medical professional offered a diagnosis thereof during that time frame and, in fact, Dr. S.P.S. himself recorded no PTSD diagnosis following his outpatient evaluation of the Veteran in February 2005. No diagnosis of PTSD was indicated on further evaluation in the Substance Use Disorder Program (SUDP) in June 2005. An impression of possible PTSD was noted as part of the SUDP in October 2009. PTSD with nightmares was listed as an active problem, as opposed to a diagnosis, on a VA problem list, dated in September 2009. A primary care clinic PTSD consult in October 2009 found no PTSD diagnosis was warranted, citing as a basis that Criterion A for a PTSD diagnosis under the DSM-IV based on the claimed stressor or symptoms had not been satisfied. A mental status evaluation during the course of VA outpatient care in November 2009 did not yield a diagnosis of PTSD. Further notation was made in VA outpatient notes in August 2012 that the Veteran had PTSD that was controlled with medication. Apart from VA treatment, three VA examinations have been afforded the Veteran during the course of the instant appeal. Those evaluations were conducted in March 2004, April 2010, and April 2013 and none resulted in entry of a PTSD diagnosis. The March 2004 examination indicated that while some PTSD symptoms were present, but those symptoms were also consistent with a depressive disorder that was diagnosed and later service connected. The VA examiner found also that the DSM-IV criteria, specifically Criterion A, were not met due to non-involvement in the accident or directly witnessing the event. Further evaluation in April 2010 disclosed only subthreshold PTSD, and while Criterion B was found to have been met, Criterion A and C were not and only a portion of the elements of Criterion D were met. The April 2010 examiner again evaluated the Veteran in April 2013, and again found there to be subthreshold PTSD, concluding that the Veteran's symptoms did not meet the diagnostic criteria for PTSD under the DSM-IV criteria. However, in April 2013 the examiner found that Criterion A had in fact been satisfied, noting that the claimed stressor was adequate to support a diagnosis of PTSD. The VA examiner also concluded that the traumatic event was not persistently reexperienced, that there was no persistent avoidance of stressful stimuli or numbing of responsiveness, and that there were no persistent symptoms of increased arousal; Criterion B, C, D, E, and F were in the examiner's opinion not met. Analysis of the evidence presented, including the Veteran's hearing testimony, shows that while a diagnosis of PTSD has been entered by one or more medical professionals, a preponderance of the evidence is against a showing that the Veteran now has PTSD related to his military service. The more persuasive evidence is that furnished by the three, detailed VA examinations of record, which provide specific reasons why in fact PTSD is not now present based on the absence of a showing of certain diagnostic criteria outlined by the DSM-IV. As sought by the Veteran, the Board takes specific note of Dr. S.R.S.'s PTSD diagnoses during 2004, but such were set forth during the course of substance abuse treatment and were accompanied by little, if any, acknowledgement or discussion of the pertinent DSM-IV criteria. The Board, too, recognizes that other medical professionals have listed a PTSD diagnosis or possible PTSD as a diagnosis, or, alternatively, included PTSD among entries within a health problem catalogue. But those entries are also without any set forth foundation based on the DSM-IV criteria. The Board also acknowledges the Veteran's steadfast belief that he suffers from PTSD related to military service, but the Veteran is not shown to be a medical professional, nor are his assertions adequately substantiated or otherwise persuasive, given that a preponderance of the evidence is against a showing of PTSD. As a preponderance of the evidence is against the Veteran's claim, his claim for a service connection for PTSD must be denied without application of the doctrine of reasonable doubt. 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (CONTINUED ON NEXT PAGE) ORDER Service connection for PTSD is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs