Citation Nr: 1330346 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 09-26 422 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for a variously diagnosed psychiatric disability, to include posttraumatic stress disorder (PTSD). WITNESSES AT HEARING ON APPEAL Appellant, spouse, and M.V. ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from May 1954 to April 1956. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of the Phoenix, Arizona Department of Veterans Affairs (VA) Regional Office (RO). In March 2009, a hearing was held before a Decision Review Officer (DRO) at the RO. A transcript of the hearing is associated with the Veteran's claims file. The case was remanded to the RO in August 2012 and in April 2013. The issue on appeal was characterized as service connection for PTSD. Since the record showed another psychiatric diagnosis, and in light of the U.S. Court of Appeals for Veteran's Claims (Court) decision in Clemons v. Shinseki, 23 Vet. App. 1 (2009), it was recharacterized as stated on the preceding page. The Veteran initiated appeals of denials of service connection for asbestosis, sleep apnea, and residuals of frostbite of the bilateral lower extremities. He withdrew his appeals pertaining to asbestosis and sleep apnea in March 2009. An August 2009 DRO decision granted him service connection for residuals of frostbite of both lower extremities. Consequently, such matters are not before the Board. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran has a diagnosis of PTSD; his current anxiety disorder was not manifested in service and the preponderance of evidence is against a finding that it is related to his service. CONCLUSION OF LAW Service connection for a variously diagnosed psychiatric disability, to include PTSD, is not warranted. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA 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/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of his claim prior to its initial adjudication. August 2006 and July 2007 letters explained the evidence necessary to substantiate his claim, the evidence VA was responsible for providing, and the evidence he was responsible for providing, and informed him of disability rating and effective date criteria. He has had ample opportunity to respond/supplement the record, and has not alleged that notice in this case was less than adequate. The Veteran's service discharge examination report is associated with the record. His other service treatment records (STRs) are not available, the service department has indicated that any such records that were located at the National Personnel Records Center in St. Louis were destroyed in the July 1973 fire at that facility. Accordingly, VA has a heightened duty to assist the Veteran. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). Such duty includes searching for alternate medical records, as well as a heightened obligation on the Board's part to explain its findings and conclusions, and carefully consider the benefit-of-the-doubt rule. See Cromer v. Nicholson, 19 Vet. App. 215 (2005). In his May 2006 Application for VA benefits the Veteran reported only postservice treatment for his psychiatric disability. Consequently there are no "alternate source" STRs to be sought. Postservice treatment records (other than any actual records of treatment the Veteran received from E.A., M.D, discussed further below) have been secured. The Board's August 2012 and April 2013 remands sought actual treatment records from Dr. E.A.. The RO requested such records both from the Veteran and from Dr. E.A. In mid May 2013 a copy of a March 2007 letter was resubmitted. Later in May 2013 VA requested from Dr. E.A. records of all pertinent treatment he had reportedly provided. There was no response. In June 2013, the RO again sought such records from both the Veteran and from Dr. E.A. There was no response. The only inference to be made from the Veteran's lack of co-operation in this matter and his physician's non-response is that the alleged records either to not exist or that they do not support the Veteran's claim. At any rate, the Board finds that further attempt to secure such records would be pointless, and that VA's duty to assist the Veteran in this regard is met. The RO arranged for a September 2012 VA examination in this matter and also secured a February 2013 VA medical advisory opinion. These are adequate for rating purposes, as will be discussed further below. Factual Background The Board notes it has reviewed all of the evidence in the Veteran's claims file, and in Virtual VA, 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). Hence, 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 claims. The Veteran is not shown to have served in combat. On service separation examination in April 1956 psychiatric evaluation was normal. On May 1999 private neurological evaluation, it was noted that the Veteran's girlfriend described him as having violent outbursts during his sleep, but always having a pleasant personality during the daytime, and never expressing any anger. A sleep disorder was suspected. A sleep lab study was recommended. In October 1999, the Veteran received an assessment of a probable REM sleep behavior disorder. In May 2006, the Veteran indicated that his violent nightmares began in May 1956 and that he received treatment for such nightmares in 1998. In January 2007, V.S.C., M.D. reported that the Veteran was seen to rule out Parkinson's disease because of a 2-month history of right hand resting tremor. The Veteran felt anxious and nervous all the time. The assessment was right hemi-Parkinson's disease. In March 2007, Dr. E.A. advised that he had treated the Veteran for anxiety, history of panic disorder, and PTSD. In September 2007, the Veteran reported nightmares, and that he believed they happened over the years since he left service; he felt that his outbursts at night were related to his service in Korea. In October 2007, the Veteran's wife stated that she had been affected by his frequent scary outbursts and flailing of his arms. Judging by his outbursts, she was convinced that they stemmed from his service in Korea. In October 2007, the Veteran stated that the most intense memories affecting him were of chronic and constant exposure to cold and fear of dying (while in Korea). In July 2008, the Veteran's brother stated that during service, the Veteran spent some 16 months in a combat zone close to the demilitarized zone, and that this period of time was memorable because during his service in Korea the Veteran missed two Christmases at home with their close-knit family, as well as the birth of his oldest son. At a March 2009 hearing before a DRO, the DRO advised the Veteran of what was needed to substantiate a claim of service connection for PTSD (to include a stressor event in service). The Veteran testified that there was stress in service from being out in the open and not knowing what was going to happen next; from serving on guard duty (and by virtue of the location of his unit); and from the frigid weather. In October 2009, Dr. E.A. (the Veteran's private provider) noted that the Veteran had received prescriptions for psychotropic medication since January 2002, for diagnoses that included anxiety, aggressive behavior, depression, memory loss, and probable PTSD. It was Dr. E.A.'s opinion that these diagnoses were related to the Veteran's service in Korea. They had discussed in detail the severe cold weather the Veteran had endured, which caused anxiety and distress. The Veteran was also emotionally affected from seeing the aftermaths of war and starvation of Korean nationals; such events had a lasting effect on his mental state. On September 2012 VA psychiatric evaluation, it was noted that the examiner reviewed the Veteran's claims file and elicited historical information from the Veteran's wife. The Veteran reportedly had anxiety and fear, and became nervous for no reason. He said he could not link any nervousness or fear to anything from Korea. Upon being asked, he denied re-experiencing of trauma. He was asked whether his flailing in his sleep was linked to service experiences, and denied that it was. He indicated that his anxiety was primarily from driving and being in traffic. The Veteran reported that he served on guard duty and tended to prisoners while stationed in Korea; he denied being in combat. He related that it was cold in Korea, and that he sustained frostbite as a result. He also related that he had observed bodies [of persons killed in the Korean war]. The examiner found that based on that day's evaluation the Veteran did not have meet the criteria for a diagnosis of PTSD which conforms to DSM-IV criteria, explaining that the Veteran had not persistently re-experienced the traumatic event, did not describe persistent avoidance of stimuli associated with the trauma or numbing of general responsiveness, and did not have persistent symptoms of increased arousal. The diagnosis found was anxiety disorder not otherwise specified. The examiner opined that the anxiety was not related to the Veteran's service as he did not described military experiences in relation to the anxiety and did not describe any anxiety secondary to injuries sustained in service. The RO secured a February 2013 independent medical opinion (based on review of the record) addressing the question of whether the Veteran's service-connected residuals of frostbite had caused or aggravated his anxiety disorder. The consulting physician opined that the Veteran's anxiety disorder, was less likely than not (less than 50 percent probability) incurred in or caused by or aggravated by an injury, event, or illness in service, including frostbite/cold weather exposure in Korea. The opinion-provider further indicated that the Veteran's mental disorder was less likely than not (less than 50 percent probability) proximately due to or the result of or aggravated by his service-connected bilateral lower extremity frostbite residuals. The explanation was that the separation examination had no defects noted, and that by the Veteran's own history, his anxiety symptoms come upon him for no reasons or when driving, and he did not link them to combat experiences or to exposure to harsh winters in Korea. With respect to the anxiety disorder being secondary to his service-connected frostbite injury to both lower extremities, the September 2012 VA examiner had noted that the Veteran did not describe any anxiety secondary to injuries sustained in service. C. Legal Criteria and Analysis Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 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 disability was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for a claimed disability, there must be evidence of a present disability; evidence of an in-service incurrence or aggravation of a disease or injury; and evidence of 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). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), i.e., a diagnosis conforming to DSM-IV; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link, or causal nexus, between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). VA published a final rule that amended its adjudication regulations governing claims of service connection for PTSD. 75 Fed. Reg. 39843 (July 13, 2010); see also 75 Fed. Reg. 41092 (July 15, 2010) (correcting effective and applicability dates). Where the Veteran did not engage in combat with the enemy, or the claimed stressors are not related to combat, then the Veteran's testimony alone is not sufficient to establish the occurrence of the claimed stressors, and his testimony must be corroborated by credible supporting evidence. Cohen v. Brown, 10 Vet. App. 128 (1997). 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; 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). It is not in dispute that the Veteran now has a psychiatric disability. Specifically, the probative evidence indicates that he has anxiety disorder NOS. This was based on a VA psychiatric examination report by an examiner who elicited/considered his symptoms and provided such diagnosis. However, the preponderance of the evidence is against a finding that the Veteran has a diagnosis of PTSD. The "positive" evidence regarding a PTSD diagnosis includes March 2007 and October 2009 letters from Dr. E.A. reporting that the Veteran has PTSD or probable PTSD. However, Dr. E.A. does not identify all the symptoms that support such diagnosis (and has declined to submit his reported treatment records -to see if they are consisted with (support) the assignment of such diagnosis), The Board finds that the failure to provide the treatment records creates an inference that any such records do not support the diagnosis of PTSD. Therefore, in the matter of whether the Veteran has PTSD Dr. E.A.'s letters lack probative value. The "negative" evidence regarding a PTSD diagnosis consists of the opinion offered on September 2012 VA examination, indicating that the Veteran does not meet the criteria for a diagnosis of PTSD. Specifically, it was indicated that the Veteran did not meet the criterion of the traumatic event being persistently re-experienced, did not meet the criterion of persistent avoidance of stimuli associated with the trauma or numbing of general responsiveness, and did not meet the criterion of persistent symptoms of increased arousal. Because the September 2012 VA examiner expresses familiarity with the entire record, conducted a thorough examination with all pertinent findings noted, and provides a detailed explanation of rationale, the Board finds the opinion to be both probative and persuasive. The Board has considered the lay statements regarding whether the Veteran has PTSD. While laypersons are competent to report psychiatric symptoms they have observed, the diagnosis of PTSD cannot be established by lay observation, it is a complex medical question that requires medical expertise regarding the significance of symptoms shown, i.e., whether they form the constellation of symptoms needed to support a PTSD diagnosis, and whether or not they can be attributed to a combat or corroborated by credible evidence stressor event (as well as medical training regarding the sufficiency of a stressor to support the diagnosis). Therefore, the lay statements reporting symptoms cannot of themselves establish that the Veteran has PTSD (although the reports of symptoms observed are evidence for consideration by medical professionals determining whether such diagnosis is warranted). In light of the foregoing, the Board finds that the preponderance of the evidence is against a finding that the Veteran has PTSD. Consequently, there is no valid claim of service connection for PTSD. See Brammer v. Derwinski, 3 Vet. App. 223 (1992). The psychiatric diagnosis of anxiety disorder which is shown was not manifested in service or for many years thereafter. Therefore, service connection for such disability on the basis that it became manifest in service, and persisted, is not warranted. What remains for consideration is whether the anxiety disorder first found years after service may be related to the Veteran's service. In October 2009, Dr. E.A. indicated that the Veteran's anxiety disorder is related to his service. However, Dr. E.A. did not explain the rationale for the opinion (and has declined to submit the Veteran's treatment records, which suggests that they do not support the Veteran's claim). The 2012 VA examiner (whose opinion the Board finds probative, as discussed above), indicated that the Veteran's anxiety disorder was unrelated to his service as he had not described any military experiences in relation to the anxiety, or described any anxiety as secondary to injuries sustained in service. The consulting physician (in February 2013) also concluded that the Veteran's anxiety disorder was unrelated to an injury, event, or illness in-service, including frostbite/cold weather exposure in Korea. He noted that the Veteran's separation examination listed no defects, and that his anxiety symptoms come upon him for no reasons or when driving, and that the Veteran himself did not [his current anxieties] to combat experiences or to exposure to harsh winters in Korea. This opinion likewise has probative value as the provider explains the rationale in detail, with citation to factual data, including findings by the September 2012 VA examiner. In light of the foregoing, the Board finds that the preponderance of the evidence is against the Veteran's claim. Accordingly, the benefit of the doubt doctrine does not apply; the appeal in this matter must be denied. ORDER The appeal seeking service connection for a variously diagnosed psychiatric disorder, to include PTSD, is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs