Citation Nr: 1329751 Decision Date: 09/17/13 Archive Date: 09/25/13 DOCKET NO. 07-05 938 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include anxiety disorder and/or posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARINGS ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD K. Gielow, Counsel INTRODUCTION The Veteran served on active duty from June 1965 to June 1968. These matters come before the Board of Veterans' Appeal (Board) from a September 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, which denied the Veteran's claim of entitlement to service connection for PTSD. The Veteran testified at a hearing before a Decision Review Officer in October 2007, and he also testified before the undersigned Acting Veterans Law Judge in August 2011. Transcripts of the hearings are of record. In February 2011 and January 2012, the Board remanded the present matter to the agency of original jurisdiction (AOJ) for additional development and more broadly characterized the issue on appeal to include an anxiety disorder pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009). The issues of whether new and material evidence has been presented to reopen claims for entitlement to service connection for a kidney disorder and hypertension have been raised by the record (see July 2012 and May 2013 statements), but have not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over the matters, and they are hereby referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran has been diagnosed with anxiety disorder; he does not have a PTSD diagnosis made pursuant to the Diagnostic and Statistical Manual of Mental Disorders (4th ed.) (DSM-IV). 2. The Veteran engaged in combat with the enemy. 3. The Veteran's anxiety disorder is related to his combat experiences. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for an anxiety disorder have been met. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). 2. The criteria for entitlement to service connection for PTSD have not been met. 38 U.S.C.A. §§ 1110, 1154 (West 2002); 38 C.F.R. §§ 3.304, 4.125 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist 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, 5106, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). With regard to entitlement to service connection for an anxiety disorder, to the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with adjudication of the claim given the favorable nature of the Board's decision herein. Inasmuch as the determination below constitutes a full grant of the benefits sought, any error in notice or assistance is harmless. As to the PTSD claim, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. See 38 C.F.R. § 3.159(b)(1). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), it was provided that notice must inform the Veteran that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The Veteran was provided with sufficient notification letters in April 2005, June 2005, and November 2006 with the most recent letter providing the Dingess requirements. With regard to the duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). As an initial matter, all relevant evidence necessary for an equitable resolution of the Veteran's PTSD claim has been identified and obtained to the extent possible. The Veteran's service treatment records, VA treatment records, private treatment records, and Social Security Administration records have been obtained. The Board recognizes that VA has been unable to obtain records from the Veteran's in-service hospitalization in Vietnam. On numerous occasions, the Veteran has expressed his dissatisfaction regarding the unavailability of these records; thus, he has demonstrated actual knowledge that the records are unavailable. Moreover, inasmuch as the Board is conceding in-service combat stressors in this case, he is not prejudiced by not receiving formal 38 C.F.R. § 3.159(e) written notice of the unavailability of these records. The Veteran also submitted lay statements and oral testimony during the DRO and Board hearings. There is a duty to fully explain the issues still outstanding that are relevant and material to substantiating the claim and a duty to suggest that a claimant submit evidence on an issue material to substantiating the claim when the record is missing any evidence on that issue or when the testimony at the hearing raises an issue for which there is no evidence in the record. Procopio v. Shinseki, 26 Vet. App. 76 (2012) (citing Bryant v. Shinseki, 23 Vet. App. 488, 492, 496 (2010)). In this case, information was solicited regarding the presence of a current disability of PTSD, and the Board remanded this case on two occasions in order to provide the Veteran with a VA examination and opinion on this outstanding element. Accordingly, consistent with Bryant, the duties set forth in 38 C.F.R. § 3.103(c)(2) have been complied with. The Board is also satisfied that there has been substantial compliance with the Board's prior remands. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (indicating that a Court or Board remand confers upon the appellant the right to substantial, but not strict, compliance with that order). Pursuant to the remands, the Veteran was scheduled for VA examinations, with the purpose of obtaining an opinion regarding diagnosis and nexus that sufficiently contemplated his combat history. To the extent that the AOJ was directed to place a copy of the letter sent to the Veteran regarding the scheduling of the examination in the claims file, it does not appear that this was accomplished. However, in March 2012, the Veteran called VA and stated that he would not be reporting for his examination scheduled on March 29, 2012; therefore, it is clear that he received adequate notice of the date and time of the examination, establishing that there was at least substantial compliance with the Board's remand directive. Nevertheless, he refused to report. The Veteran was also advised on multiple occasions of the consequences for failure to report for a VA examination without good cause, which may result in the claim being decided, and possibly denied, based on the evidence of record pursuant to 38 C.F.R. § 3.655(b) (2012). No good cause has been shown here as the Veteran reported in a March 2012 report of contact that "he feels as if he has told the VA examiners all he knows and that this appointment would be useless/a waste of time." It is well established that the duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991). Thus, there is no Stegall violation in this case for not obtaining a new VA examination on remand, and the Board may proceed to adjudicate the claim for PTSD at this time based on the evidence of record. II. Anxiety Disorder Service connection is established where a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). Establishing entitlement to service connection for a disability on a direct basis generally requires evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). After reviewing the evidence of record, the Board finds that the criteria for entitlement to service connection for an anxiety disorder have been met. As an initial matter, the evidence establishes a current disability during the appeal period. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the requirement of a "current disability" is satisfied if a disorder is diagnosed at the time a claim is filed or at any time during the pendency of the appeal). The most recent August 2008 VA examination provided an Axis I diagnosis of anxiety disorder, not otherwise specified. Turning to the next element, that of in-service incurrence or aggravation of a disease or injury, the Board notes that the Veteran's DD-214 reflects that his military occupational specialty (MOS) was a combat engineer. It further reflects that he received the Combat Infantryman Badge. This information indicates that the Veteran participated in combat and is there entitled to the presumptions of 38 U.S.C.A. § 1154(b) (West 2002). See 38 C.F.R. § 3.304(d). Therefore, VA shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service. At the Board hearing, the Veteran reported that he incurred anxiety and nervousness in service. He explained that this is when he began having problems sleeping and experienced hypervigilance. Based on his testimony, as well as numerous lay statements detailing the stressful experiences he was subject to during combat, the Board concedes the in-service occurrence of these events. Having determined that the Veteran has a current diagnosis of anxiety disorder and that he experienced anxiety due to stressful events during service, the Board now turns to the remaining element of service-connection, that of a nexus between the present disability and the in-service events. The Board acknowledges that a February 2010 VA addendum opinion stated that the Veteran's anxiety disorder "is not due to or caused by military service." However, this opinion was improperly based on the absence of documented evidence of "mental health disturbance or treatment in military service" being found in the service treatment records in violation of the presumption of in-service incurrence under 38 U.S.C.A. § 1154(b). On the other hand, a May 2007 Mental Health Clinic evaluation assessment determined that the Veteran's psychiatric symptoms "are all directly related to his combat exposure." Because the May 2007 opinion is consistent with the documented history of in-service combat experiences, the Board finds no adequate basis to reject this positive evidence, based on a lack of credibility or probative value. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Evans v. West, 12 Vet. App. 22, 26 (1998). Accordingly, the Board finds that the third element of a nexus to service has sufficiently been demonstrated by the evidence in this case. Given the diagnosis rendered during the appeal period and the favorable nexus opinion of record, the Board resolves doubt in the Veteran's favor and finds that the evidence supports the establishment of service connection. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. As such, the Veteran's service-connection claim for an anxiety disorder is granted. III. PTSD Three general requirements for establishing service connection for PTSD are outlined in 38 C.F.R. § 3.304(f). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (2013) (stating that if a diagnoses of a mental disorder does not conform to DSM-IV or is not supported by findings in the examination report, the rating agency shall return the report to substantiate the diagnosis); 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. 38 C.F.R. § 3.304(f). 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 service-a veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor in the following circumstances: when a veteran was diagnosed with PTSD during service and the claimed stressor is related to that service (38 C.F.R. § 3.304(f)(1)); engaged in combat with the enemy and the claimed stressor is related to that combat (38 C.F.R. § 3.304(f)(2)); or when a veteran was a prisoner-of-war under the provisions of § 3.1(y) and the claimed stressor is related to that prisoner-of-war experience (38 C.F.R. § 3.304(f)(4)). After carefully reviewing the evidence of record, service connection must be denied in this case for lack of a PTSD diagnosis at any time throughout the claim period. The United States Court of Appeals for Veterans Claims has stated, "[A] clear (that is, unequivocal) PTSD diagnosis by a mental-health professional must be presumed (unless evidence shows to the contrary) to have been made in accordance with the applicable DSM criteria as to both the adequacy of the symptomatology and the sufficiency of the stressor." Cohen v. Brown, 10 Vet. App. 128, 140 (1997). Moreover, the "current disability" requirement for service connection will be met when there is a disability at the time of filing or during the pendency of a claim. McClain, 21 Vet. App. at 321. The Board may also make a factual finding as to whether an earlier diagnosis is sufficiently proximate to the filing of a claim so as to constitute evidence of a "current diagnosis." Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Notwithstanding the above, there is no competent evidence establishing that the Veteran has been diagnosed with PTSD during the claim period. The Board acknowledges the Veteran's combat service, and the Board accepts the Veteran's lay testimony as sufficient evidence to establish the occurrence of the claimed in-service stressor. As alluded to above, relevant to this case is the relaxed evidentiary standard of proof afforded combat Veterans under 38 U.S.C.A. § 1154(b). See Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996). That statutory provision directs that, when a disability is alleged to have been incurred or aggravated in combat, this element may be met through satisfactory lay evidence, consistent with the circumstances, conditions, or hardships of a veteran's verified combat service, even when there is no official record of the incident. Id. Such credible, consistent evidence may be rebutted only by clear and convincing evidence to the contrary. Id. Significantly, however, 38 U.S.C.A. § 1154(b) does not establish a presumption of service connection; rather, it eases a combat Veteran's burden of demonstrating the occurrence of some in-service incident to which the current disability may be attributed. See id. The United States Court of Appeals for the Federal Circuit (Federal Circuit) further clarified that the section 1154(b) presumption can be used not just to show the incurrence of an event or injury, but to show that a veteran incurred a permanent disability in service. Reeves v. Shinseki, 682 F.3d 988, 999-1000 (Fed. Cir. 2012). In such cases, it may be far easier for a veteran to establish that there was a nexus between military service and the severe disability with which he or she was afflicted after leaving the military. Id. Instead of attempting to establish that the injury suffered while in the military led to a disability following his service, a veteran "would only have had to show that the [] disability he incurred in service was a chronic condition that persisted in the years following his active duty." Id. Notwithstanding, the Federal Circuit explained that "[e]ven when the section 1154(b) combat presumption applies, a 'veteran seeking compensation must still show the existence of a present disability and that there is a causal relationship between the present disability and the injury, disease, or aggravation of a preexisting injury or disease incurred during active duty.'" Id at n. 9. Thus, the reduced evidentiary burden only applies to the question of service incurrence, and not to the remaining service-connection elements of current disability and nexus. In assessing whether there is a current diagnosis of PTSD, the Board has carefully reviewed the existing post-service evidence, including VA treatment records, VA examination reports, and private treatment records. However, the Veteran's June 2005 VA examination concluded that he did "not meet full DSM-IV criteria . . . he meets criteria A (exposure to trauma), B (reexperiencing), but not C (avoidance) or D (arousal)." At his initial evaluation at the VA Mental Health Clinic in May 2007, it is acknowledged that he was assigned a diagnosis of anxiety disorder and a provisional diagnosis to rule-out PTSD. Upon further evaluation in August 2007, though, it was determined that the Axis I diagnosis was more likely anxiety disorder versus adjustment disorder with mixed emotions-not PTSD. It was explained that there was no real reexperiencing or avoidance, as he watched television all the time. Further, it was noted that although he tries to avoid crowds when he goes out, "he can still function well with the crowd." Thus, it was determined that "[h]e does not meet [the] criteria for PTSD." In August 2008, the Veteran was evaluated at another VA examination. Again, the examiner determined that although "[t]he Veteran does have a history of combat stress related to his military service in Vietnam[,] he does not meet DSM-IV-TR criteria for [PTSD]." The Board remanded this issue in February 2011 and January 2012 to afford the Veteran with yet another opportunity to be examined so that a mental health professional could proffer an opinion on whether the Veteran's symptoms met the criteria for PTSD. However, as explained above, the Veteran refused to report for another examination, stating in March 2012 that he felt "he has told the VA examiners all he knows and that this appointment would be useless/a waste of time." Unfortunately, without competent evidence of a diagnosis of PTSD, the Veteran's claim must fail. The lay statements of the Veteran and his wife attesting to symptoms of PTSD have been considered but are found to be without probative value. Determining the existence of psychiatric disorder, such as PTSD, does not involve contemplation of a simple disorder where the question of diagnosis or etiology does not require specialized training. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007) ("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."). Rather, the question of whether the Veteran's symptoms are attributable to a diagnosis of PTSD is more complex in nature than a fracture to a leg or other extremity and is not capable of lay observation or diagnosis. Instead, the Board finds highly probative the uncontroverted evidence of record from the post-service health care providers, who upon looking at whether a diagnosis of PTSD could be ruled out, determined that the Veteran does not meet the criteria for a diagnosis of PTSD. Because the weight of the evidence indicates that the diagnosis element of 38 C.F.R. § 3.304(f) has not been met, service connection for PTSD must be denied. ORDER Service connection for an anxiety disorder is granted. Service connection for PTSD is denied. ____________________________________________ RYAN T. KESSEL Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs