Citation Nr: 1329672 Decision Date: 09/16/13 Archive Date: 09/20/13 DOCKET NO. 11-21 820 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for a chronic acquired psychiatric disability, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Chapman, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1953 to July 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In July 2012, the Veteran testified at a Board videoconference hearing and a transcript of that hearing is associated with the claims folder. Also in December 2012, the Board reopened this matter and remanded for additional development. 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. The Veteran does not have a diagnosis of PTSD. 2. Acquired psychiatric disability was not manifested during the Veteran's active duty service or for many years thereafter, nor is acquired psychiatric disability otherwise related to such service. CONCLUSION OF LAW Acquired psychiatric disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303, 3.304, 3.307, 3.309, 4.125(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the VCAA, the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete application, VA 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 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant pre-adjudication notice a by letter dated in July 2004. The notification complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence. The RO provided the appellant with additional notice in October 2010, subsequent to the initial adjudication. The notification complied with the specificity requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006) identifying the five elements of a service connection claim; and Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. 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). See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). VA has obtained service treatment records (STRs) and private and VA treatment records. Efforts to obtain the Veteran's worker's compensation and social security administration (SSA) records were unsuccessful, as the Veteran's claims files had been destroyed. In a June 2013 letter, the Veteran was notified of this and advised that if such records were in his possession, he could submit them. No such records have been received to date. In addition, the Veteran was afforded VA examinations in April 1994 and July 2013; and he was afforded the opportunity to give testimony at a Board videoconference hearing in July 2012. All known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; and the Veteran and his representative have not contended otherwise. VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. Factual Background Initially, the Board notes that it has reviewed all the evidence in the Veteran's claims file and in Virtual VA (VA's electronic data storage system). Although the Board has an obligation to provide adequate reasons and bases supporting its decision, there is no requirement that the Board discuss every piece of evidence in the record. Rather, the Board will summarize the relevant evidence, as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. See Gonzalez v. West, 218 F.3d 1378, 1380- 81 (Fed. Cir. 2000). The Veteran's STRS were silent for complaints, treatment, or diagnoses of a psychiatric disability. Specifically, on July 1956 service separation examination, the Veteran's psychiatric evaluation was normal. Upon VA examination in April 1958 in connection with claims for physical disorders, the Veteran's psychiatric status was evaluated as normal. VA outpatient treatment records dated between 1969 and 1985 were negative for complaints or treatment for a psychiatric disability. A 1993 private psychiatric evaluation showed the Veteran was diagnosed with depressive disorder, not otherwise specified. An April 1994 VA examination reveals the Veteran reported psychiatric problems beginning in May 1992 after a racial incident at the school where he was teaching in Los Angeles, California, following the race riots. The Veteran reported stress from the riots. He denied any psychiatric illness prior to May 1992. He was diagnosed with major depression. Records from the California School District show the Veteran was diagnosed with job related major depression. In 1994, the Veteran filed for SSA benefits claiming "mental depression disorder" as his disabling condition. As noted above, efforts to obtain such records were unsuccessful. VA outpatient treatment records dated in January 2005 show the Veteran underwent a PTSD screen. He reported having nightmares, being constantly on guard and watchful, and being easily startled. The screen was negative, but he had a positive depression screen. In February 2005, the RO determined that service connection was not warranted for manic depressive/neurosis, determining that there was no evidence of the disability in service or for many years thereafter and that there was no evidence that the claimed disability was incurred in or caused by the Veteran's service. In December 2009, a psychological assessment revealed "no depression/sadness, insomnia, hallucinations, suicidal thoughts." In October 2010, the Veteran filed a claim for PTSD. Through his statements and testimony, he claims that PTSD was the result of stressors to include being subjected to day by day firing of a 105 Howitzer gun, fear of stepping on a land mine in Korea, and having someone in Okinawa killed when they picked up a land mine. An October 2010 treatment record noted that the Veteran reported poor sleep and irritability beginning in 2003 after having prostate cancer. He denied combat exposure. He was diagnosed with depressive disorder, not otherwise specified. VA outpatient treatment records dated in 2011 and 2012 show continued treatment for depressive disorder, not otherwise specified. In February 2011, the RO made a formal finding on the lack of evidence to verify stressors. On February 2011 psychiatry note, the Veteran reported that he was less irritable and didn't argue as much when he was taking his medication. An Axis I diagnosis of depressive disorder not otherwise specified was noted. This diagnosis was again noted in an April 2011 psychiatry note. At this time, the Veteran reported that "his mood has been good because he decided not to let things get to him." He also admitted to not taking his medication regularly and identified a stressor, stating that a possible lien is being put against his home. In July 2012, the Veteran presented testimony before the Board. He testified that he was stationed in Okinawa, Japan, and was a truck driver. He further testified that he fired a 105 Howitzer gun from his truck. He reported symptoms of anger, marital difficulty resulting in divorce, and talking to himself. He also indicated that he had recurring dreams of fighting crowds and running in fear. He testified that his Marine unit was the first in Okinawa after the Korean War and that they were told there were live explosives or duds in the ground, which caused him fear. He stated that someone got killed when they handled a land mine, though he did not recall the name of the individual. In June 2013, the RO again made a formal finding on the lack of evidence to verify stressors. On July 2013 VA examination, the Veteran identified two stressors. First, he stated that while on a trip to Iwo Jima, someone was blown up and killed by a land mine; he stated that he did not witness it but was told about it by his commander. Secondly, he reported an incident during boot camp when his drill instructors laughed at him and hit him. The examiner noted that neither of these stressors is adequate to support the diagnosis of PTSD. Additionally, the examiner noted that the Veteran had difficulty falling or staying asleep, but did not experience persistent avoidance of stimuli associated with the trauma or numbing of general responsiveness. The examiner concluded that the Veteran's symptoms do not meet the diagnostic criteria for PTSD under DSM-IV criteria. The examiner further concluded that the Veteran does not have a mental disorder that conforms with DSM-IV criteria. The examiner stated he is aware that an April 2011 psychiatry note indicated that depressive disorder was diagnosed; however he stated that he could not account for this diagnosis since that treatment note also indicated that the Veteran denied mood, sleep, appetite and energy problems. Further, the examiner noted that records indicate that the Veteran's mood tends to fluctuate depending on stress which would suggest his mood shifts are transient reactions to life events and appear to be within normal limits. Legal Criteria and Analysis The Veteran is seeking service connection for an acquired psychiatric disability, originally claimed as PTSD. Applicable law provides that 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 suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Additionally, for Veteran's who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as psychoses, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 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. See 38 C.F.R. § 3.304(f). The provisions of 38 C.F.R. § 4.125(a) require that a diagnosis of a mental disorder conform to the Diagnostic and Statistical Manual, Fourth Edition (DSM-IV). During the course of the appeal, the provisions of 38 C.F.R. § 3.304(f) pertaining to PTSD were amended; specifically, an amendment to 38 C.F.R. § 3.304(f) effective from July 13, 2010. See 75 Fed. Reg. 39843 (July 13, 2010). This amendment eliminated the requirement for corroboration that the claimed in-service stressor occurred if a stressor claimed by the Veteran is related to the Veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA had contracted confirms that the Veteran's symptoms are related to the claimed stressor, provided that the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). PSTD The Board observes that there is no diagnosis of PTSD documented or alleged during the Veteran's military service. In any event, even if there were in-service manifestations of psychiatric disability, service connection for PTSD still could not be granted in this case without a current diagnosis of PTSD. The preponderance of the evidence indicates that the Veteran does not have PTSD. There are no medical reports of record containing a verified diagnosis of PTSD with reference to the applicable DSM-IV criteria. Moreover, when the Veteran was examined by a VA licensed clinical psychologist, it was unequivocally concluded that a diagnosis of PTSD was not supported. The examining psychologist presented the clear competent conclusion that the Veteran's reported stressor events do not meet the PTSD stressor criterion, and furthermore, that the Veteran's symptoms are not sufficient to make a PTSD diagnosis (or any mental disorder diagnosis). This conclusion from the qualified clinical psychologist was informed by thorough interview and examination of the Veteran, together with review of the claims file and citation to the factual record. The Board finds that the July 2013 VA examination report's conclusion is highly probative evidence indicating that the Veteran does not have a diagnosis of PTSD meeting the applicable DSM-IV criteria. There is no probative evidence to the contrary showing a PTSD diagnosis during the pendency of this appeal. As the weight of the probative evidence weighs against finding that the Veteran has had a diagnosis of PTSD, service connection for PTSD cannot be warranted. 38 C.F.R. § 4.125(a). In the absence of a current diagnosed disability, service connection cannot be granted for such disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet App. 141, 143-144 (1992). The Board acknowledges the Veteran's assertions that he suffers from PTSD. The Veteran's lay testimony is competent to report his symptoms, but his own account of symptom complaints has been interpreted by the competent licensed clinical psychologist as failing to meet the DSM-IV criteria for a PTSD diagnosis; the Veteran is not shown to possess the skills necessary to establish a specialized diagnostic characterization of his psychiatric symptoms as PTSD. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, determining a diagnosis of PTSD falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer)." Here, the psychologist serving as the July 2013 VA examiner, with full knowledge of the Veteran's self-reported history of symptoms, was nevertheless of the opinion that the Veteran does not currently have PTSD. The Board finds the VA examiner's opinion is the most probative evidence, and thus, must conclude that the evidence of record weighs against finding that the Veteran has a diagnosis of PTSD. With no current diagnosis of PTSD, service connection cannot be granted for PTSD. After reviewing the totality of the evidence, the Board finds that the preponderance of the evidence is against service connection for PTSD. 38 U.S.C.A. § 5107. Acquired Psychiatric Disability Other Than PTSD Although the Veteran primarily claimed entitlement to service connection for PTSD, application of the judicial holding in Clemons v. Shinseki, 21 Vet. App. 1 (2009) results in the Board considering the expanded issue of entitlement to service connection for an acquired psychiatric disability more broadly. As noted above, the Veteran's STRs are silent for any complaints, treatment, or diagnosis of a psychiatric disability. The earliest diagnosis of a psychiatric disability is in 1993 when the Veteran was diagnosed with depressive disorder, not otherwise specified. During the July 2012 hearing, the Veteran testified that he did not have any psychiatric problems during service, but that they developed later. Accordingly, the evidence is against a finding that a psychiatric disability manifested in service or that a psychosis manifested in the first postservice year. The Board must now consider whether the Veteran presently suffers from a psychiatric disability as otherwise due to service. The Board acknowledges the prior diagnoses of depressive disorder, not otherwise specified, and major depression in the record. However, the Board notes that these diagnoses appear to be attributed to other causes, and not to service. Notably, on April 1994 VA examination, the Veteran reported that his psychiatric problems began in May 1992 and attributed such problems to racial tensions. Then, in October 2010 the Veteran was diagnosed with depressive disorder after he reported poor sleep and irritability (beginning in 2003) from dealing with prostate cancer. Finally, in February and April 2011 treatment records, Axis I diagnoses of depressive disorder not otherwise specified were noted. At this time, the Veteran reported stress from a possible lien being put against his home, but also reported his mood was improved. Further, records from his employer (California School District) revealed the Veteran was diagnosed with job related major depression. Here, the evidence of record shows the Veteran seeking psychiatric treatment and receiving diagnoses of depression for stress as due to various life events. He does not contend, nor does the evidence show that his depression is due to service. The only opinion of record that considers the causal relationship of such psychiatric complaints and symptoms is the July 2013 VA examiner's report, which attributed the Veteran's documented mood fluctuations as "transient reactions to life events." The VA examiner opined that the Veteran is not presently suffering from any mental disability. The Board finds this opinion highly probative, as it was provided by a licensed clinical psychologist who, after a thorough examination and interview with the Veteran and after a review of the claims file with citation to the factual record, determined that the Veteran did not presently suffer from any mental disability. Specifically, the examiner considered the April 2011 treatment record noting a diagnosis of depressive disorder, but stated that he could not account for this diagnosis since the treatment record also noted the Veteran denied mood, sleep, appetite and energy problems. The Board has considered the Veteran's contentions, but notes that the Veteran is not competent to offer an opinion as to the cause of his depressive disorder and its relationship to his period of military service. The Board finds that any such statements made by the Veteran in this regard are entitled to limited probative value since he lacks any medical training. See 38 C.F.R. § 3.159(c). There is no competent medical evidence showing that any acquired psychiatric disability, including depressive disorder/major depression is otherwise causally linked to his service. There is no suggestion of any psychiatric problems until 1992, over 30 years after service separation. Such a lengthy time interval between service and the Veteran's first recorded request for treatment for depression is, of itself, a factor weighing against a finding of service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board is thus compelled to conclude that the preponderance of the evidence is against service connection for an acquired psychiatric disability. Thus, the benefit of the doubt rule is not for application and the claim must be denied. 38 U.S.C.A. § 5107. ORDER Service connection for an acquired psychiatric disability, to include PTSD, is not warranted. The appeal is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs