Citation Nr: 1330017 Decision Date: 09/19/13 Archive Date: 09/25/13 DOCKET NO. 10-22 162 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES Entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD) and depression. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. Adamson, Counsel INTRODUCTION The Veteran had active service from May 1995 to October 1997. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Veteran, by way of his May 2010 substantive appeal, requested a Board hearing. In June 2013, the Veteran's representative submitted a statement indicating the Veteran's desire to withdraw that hearing request. The record reflects that the RO has characterized the Veteran's psychiatric claim as two separate claims, one for service connection for PTSD and one for service connection for depression. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims (Court) found that an appellant's claim for service connection for PTSD should have been construed more broadly by VA as a claim for service connection for any mental disability. The Court noted that the claimant was not competent to diagnose a particular psychiatric disability, such as PTSD, but that he was competent to describe his mental symptoms. Id. at 4-5. The Court also noted that the evidence submitted in support of the claim showed that the appellant had been diagnosed with psychiatric disabilities other than PTSD and that these disabilities arose "from the same symptoms for which he was seeking benefits." Id. at 9. The Court held that, in construing a claim, the Board must consider any disability "that may reasonably be encompassed by several factors including: the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim." Id. at 5. The Board, therefore, is recharacterizing the Veteran's claims accordingly as a single claim for service connection for a psychiatric disability to include PTSD and depression. The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA. FINDINGS OF FACT 1. The Veteran's diagnosis of PTSD is based on a non combat stressor that has not been corroborated by credible evidence. 2. No other acquired psychiatric disorder was present until more than one year following the Veteran's discharge from service, and his current psychiatric disorder, major depression, is not related to his active service. CONCLUSION OF LAW A psychiatric disability, to include PTSD and depression, was not incurred in or aggravated by active duty, and the incurrence or aggravation of a psychosis during such service may not be presumed. 38 U.S.C.A. §§ 1101, 1110, 1112 (West 2002); 38 C.F.R. §§ 3.303, 3.304(f), 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. 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 (2013), 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). With respect to the issue decided herein, the record reflects that the Veteran was provided all required notice in a letter mailed in March 2009, prior to the initial adjudication of the claim in June 2009. The Board also finds VA has complied with its duty to assist the Veteran in the development of his claim. In this regard, the Board notes that service treatment records (STRs), service personnel records, and post-service treatment records were obtained. Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the claim; the Board is also unaware of any such evidence. The Board also finds that no additional development for medical opinions or examinations is necessary. Specifically, there is no medical evidence suggesting that the claimed disability was present until several years after the Veteran's military service or suggesting that the claimed disability is etiologically related to service. Moreover, as discussed in detail below, there is no lay evidence of record credibly establishing a continuity of symptomatology. The Board recognizes that the threshold for whether a present disability may be related to service is a low one. McLendon v. Nicholson, 20 Vet. App. 79 (2006). However, under the circumstances of this case, the low threshold has not been met. Evidentiary development in this matter is complete to the extent possible. Accordingly, the Board will address the merits of the claim. II. Legal Criteria Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). 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. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (2013); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the in-service stressor occurred. 38 C.F.R. § 3.304(f). Generally, where a veteran did not engage in combat with the enemy, or the claimed stressor is not related to combat, the veteran's testimony alone is not sufficient to establish the occurrence of the stressor, and it must be corroborated by credible supporting evidence. Cohen v. Brown, 10 Vet. App. 128 (1997). The Board is not required to accept a veteran's uncorroborated account of his active service experiences. See Swann v. Brown, 5 Vet. App. 229, 233 (1993) and Wood v. Derwinski, 1 Vet. App. 190, 192 (1991); however, a stressor need not be corroborated in every detail. Suozzi v. Brown, 10 Vet. App. 307, 311 (1997). See also, Pentecost v. Principi, 16 Vet. App. 124 (2002). Just because a physician or other health professional accepted an appellant's description of his experiences as credible and diagnosed appellant as suffering from PTSD does not mean the Board is required to grant service connection for PTSD. Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). 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; 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. III. 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. The Veteran's service personnel records do not show any awards or decorations denoting that he engaged in combat. He did serve during the Persian Gulf War and had service in Kuwait, including Kuwait peacekeeping service in Intrinsic Action 96-02. His military occupational specialty (MOS) was 11M10 Fighting Vehicle Infantryman. However, this does not establish combat service. Further, the Veteran does not contend that he engaged in combat. Because the evidence does not establish that the Veteran engaged in combat, any stressors reported by the Veteran in connection with a claim for PTSD must be corroborated by credible supporting evidence. Cohen v. Brown, 10 Vet. App. 128 (1997). In an April 2009 statement, the Veteran noted that during a training mission in April 1996 in Kuwait he was in a tank that collided with another tank. He reported being thrown around inside by the force of the impact, but that no one was injured and there was no report of damage to the tank. He also reported that one night, also in April 1996, he dismounted from a tank in the dark and started into a fast run. He reported not being able to see well and that he fell into a ditch with a dead camel that was rotting and covered in blood. He reported being able to smell the animal until he was able to wash. The Board has reviewed the Veteran's service personnel and service treatment records, neither of which contain information related to either reported stressor. The Board also notes, as did the RO, that in none of the Veteran's psychiatric treatment after service were these stressors reported. Because the Veteran did not engage in combat during his active service, corroboration of these stressors is necessary and no such corroboration exists in this case. The RO deemed the Veteran's information to be too little to submit the matter for stressor verification, as there were no injuries to have been reported and no damage to the tanks to have been reported. These reported stressors are not noted in any of the Veteran's records and are otherwise unverifiable. Thus, a valid diagnosis of PTSD under 38 C.F.R. § 4.125(a), coupled with a link, established by medical evidence, between current symptoms and an in-service stressor, and credible supporting evidence that the in-service stressor occurred, is not possible in this case. 38 C.F.R. § 3.304(f). The Veteran's service treatment records are negative for complaints or findings related to psychiatric disability, including both PTSD and depression. An August 1996 Medical History Form (DD Form 4700) completed following Intrinsic Action shows that the Veteran reported receiving no medical care during this tour, having no significant trouble sleeping or nightmares, and not feeling emotionally stressed or needing emotional support. The examining healthcare provider noted that the Veteran had been counseled on potential disease threats associated with Intrinsic Action and that he had no sequelae. The Veteran's first report of psychiatric care came in September 2006, nearly nine years following his discharge from active service. At that time, the Veteran was hospitalized at a private hospital due to depression. He was noted to have a history of major depression for the prior year; substance abuse was also noted. With medication and hospitalization, he was discharged having improved and major depression was diagnosed. Shortly thereafter, also in September 2006, the Veteran sought treatment at a VA facility with a notation of "having signs and symptoms of depression x 2 yrs." A 15 year marijuana habit and a 10 year intranasal cocaine habit were also noted. The Board notes that the Veteran's service treatment records do include several notations of counseling and treatment for drug abuse. The VA physician diagnosed major depression with polysubstance abuse. Thus, based upon these records, the earliest signs of depression manifested in the Veteran in approximately 2004, more than six years after his active service. In February 2009, the Veteran submitted a statement in support of his claim, noting that he served in Kuwait and had had multiple symptoms for several years. He reported being "extremely nervous and jittery" and that he has nightmares and flashbacks such that he is unable to sleep. VA treatment records show that he underwent a VA psychiatry consultation several days after filing this claim. He reported his symptoms, which were consistent with the statement several days prior. His psychiatric history included only the 2006 treatment discussed above. Mental status examination on that date noted that the Veteran was alert and oriented; insight and judgment were fair; his dress and grooming were appropriate; his speech was normal in rate and rhythm; his eye contact was fair; he denied hallucinations, delusions, and suicidal and homicidal ideation; and the examiner noted that no psychotic behavior was observed. The psychiatrist did note only that the Veteran reported his mood to be "depressed and jittery." The Board observes that the psychiatrist clearly reported this to be the Veteran's observation of his mood, but there is no suggestion of a physician's observation of his mood to be "depressed and jittery" on examination. Based upon this examination, the psychiatrist noted a diagnosis of "PTSD with depression and alcohol abuse." The basis for the PTSD diagnosis is completely unclear to the Board, as the psychiatrist noted every aspect the Veteran's current mental status to be essentially normal. Moreover, there was no discussion of any stressors associated with a PTSD diagnosis. Again, 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 in-service stressor occurred. 38 C.F.R. § 3.304(f). No such diagnosis is provided here. Furthermore, again, corroborated stressors are necessary, and no such stressors are present in this case. A medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressors. See Swann v. Brown, 5 Vet. App. 229 (1993); see also Moreau v. Brown, 9 Vet. App. 389, 395-96 (1996) (finding that an opinion by a mental health professional based on a post-service examination of the Veteran cannot be used to establish the occurrence of a stressor). Thus, the February 2009 diagnosis by the VA psychiatrist is not accepted as a valid PTSD diagnosis as defined by VA regulation. There exists no additional evidence to support a PTSD diagnosis; nonetheless, the record does show a diagnosis of major depressive disorder in 2006, with symptoms reported as having onset two years prior. The weight of the evidence is against service connection for this psychiatric disorder. As the above analysis reflects, service connection is not warranted for any diagnosed psychiatric disorder because there is no credible supporting evidence that any in-service injury or disease occurred, including the claimed in-service stressful event; the Veteran did not experience chronic psychiatric symptoms, including depression, in service; and the initial notation of psychiatric symptoms was reported to have been in 2004, more than six years following service separation. There is no indication in the medical evidence that the major depression is related to service. As noted above, the history provided by the Veteran for clinical purposes shows that the disorder originated years following his discharge from service. 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 a psychiatric disability, to include PTSD and depression, is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs