Citation Nr: 1330674 Decision Date: 09/24/13 Archive Date: 09/30/13 DOCKET NO. 04-16 672A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD), not to include any other acquired psychiatric disorder, anxiety, and depression, and claimed as due to an in-service personal assault. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. J. Houbeck, Counsel INTRODUCTION The Veteran had active service from June 1980 to June 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2003 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas, which denied the reopening of the claim of entitlement to service connection for dysthymia or anxiety or depression. In July 2007, the Board reopened the Veteran's service connection claim and remanded the case for additional development. Following the reopening of the claim, the Board remanded the claim in October 2008, September 2009, March 2011, and May 2012 to the RO via the Appeals Management Center (AMC), in Washington, DC, for the purpose of obtaining additional information. The matter again is before the Board. As noted in previous Board documents, in its March 2011 determination the Board recharacterized the issue on appeal as entitlement to service connection for an acquired psychiatric disorder, including PTSD, anxiety, and depression, to include as secondary to the service-connected migraine headache disability. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). The March 2011 Board determination then denied entitlement to service connection for an acquired psychiatric disorder, to include anxiety and depression. As such, the issue has been listed as above. The Board has not only reviewed the Veteran's physical claims file, but also his Virtual VA electronic claims file to ensure a total review of the evidence. FINDINGS OF FACT 1. The record does not include credible supporting evidence verifying the occurrence of the Veteran's claimed in-service stressors. 2. The Veteran has not had a PTSD disability at any point during the appellate time period. CONCLUSION OF LAW Service connection for PTSD is not warranted. 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 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2013); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his or her possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. VCAA letters dated in May 2012, June 2012, and February 2013 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b)(1) (2013); Quartuccio, at 187. The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claim. The letter informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. In addition, several of the letters advised the Veteran that evidence from sources other than his service records may constitute evidence of an in-service personal assault and allowed him to furnish this type of evidence or advise VA of potential sources of such evidence, pursuant to the requirements of 38 C.F.R. § 3.304(f)(5) (2013). The letters also explained to the Veteran how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). If any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of this appeal, the Veteran clearly has actual knowledge of the evidence the Veteran is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Veteran understands what was needed to prevail. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). In this case, the Veteran has been continuously represented by an experienced Veteran Service Organization and has submitted argument in support of his claim. These arguments have referenced the applicable law and regulations necessary to establish entitlement to service connection. Thus, the Board finds that the Veteran demonstrated actual knowledge as to the information and evidence necessary for him to prevail on his claim and is not prejudiced by a decision in this case. As such, a remand for additional notice would serve no useful purpose and would in no way benefit the Veteran. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran are to be avoided). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and VA medical records are in the file. Records from the Social Security Administration (SSA) have been associated with the claims file. Private records identified by the Veteran as relating to the claim have been obtained, to the extent possible. Furthermore, the Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c)(4) (2013). In this case, the Veteran was afforded a VA examination in July 2013, at which time the examiner concluded that the Veteran did not meet the DSM-IV requirements for a diagnosis of PTSD and opined that the Veteran's diagnosed psychiatric disabilities (previously adjudicated, as discussed above) were unrelated to service. The examiner's opinion was based on review of the claims file and interview of the Veteran. The Board, therefore, finds the VA examination report to be thorough, complete, and sufficient upon which to base a decision with respect to the Veteran's claim. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Based on the multiple notice letters, the July 2013 VA examination report, the investigation of the Veteran's contentions by the JSRRC, and the subsequent readjudication of the claim, the Board finds that there has been substantial compliance with its remand directives in the multiple decisions discussed above. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2012). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2013). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection for certain chronic diseases, including psychoses, will be presumed if they are manifest to a compensable degree within one year following active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). However, PTSD is not classified as a psychosis and, as discussed above, the Veteran's other psychiatric disorders are not currently before the Board. As such, service connection on a presumptive basis is not warranted. In the absence of presumption, to establish a right to compensation for a present disability, a Veteran must show: "(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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for PTSD specifically requires medical evidence establishing a diagnosis of the disability, credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between the current symptomatology and the claimed in-service stressor. See 38 C.F.R. § 3.304(f) (2013). If a PTSD claim is based on Military Sexual Trauma (MST) or personal assault in service, evidence from sources other than the Veteran's records may corroborate the Veteran's account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. 38 C.F.R. § 3.304(f)(5). The Veteran claims that he has current PTSD due to his military service. Specifically, he contends that he was the subject of sexual harassment by a superior officer from approximately October 1980 to March 1981 while working at Fort Ord in California. The Veteran also alleges that the same superior officer forced him to engage in unwanted sexual activity, to include oral sex, on regular occasions during the time period. The Veteran's service personnel and service treatment records are silent as to any complaints of physical or verbal assault. The service treatment records do not indicate requested testing for sexually transmitted diseases or other physical or psychological problems that could be associated with the claimed assaults. Indeed, the Veteran's April 1984 Report of Medical History shortly before separation from service included explicit denials of frequent trouble sleeping, depression or excessive worry, and nervous trouble of any sort. After service, the Veteran served in the Reserves for several years. In a December 1985 Report of Medical History, the Veteran reported depression and anxiety that he attributed to the transition from active duty to civilian life. At that time, he made no mention of in-service sexual harassment or assaults. Indeed, in a subsequent November 1989 Report of Medical History, the Veteran denied any depression, excessive worry, or nervous trouble of any sort. In addition, the Veteran's personnel file does not show a history of poor work performance after the onset of the claimed assaults, requests for transfer, or other manifestations of psychological problems due to the claimed assaults. Indeed, the Veteran's personnel records include multiple letters of appreciation for outstanding performance. For example, in February 1981 (during the claimed ongoing harassment and assaults), the Veteran received a letter of commendation for his hard work. The Board notes that the commendation was not signed by the superior officer the Veteran claims was perpetuating the assaults and harassments. In January 1982, the Veteran received a soldier of the day award and additional commendation medals in April 1982 and June 1982. Moreover, the personnel records document that the Veteran went through several education and training courses after the claimed incidents. The above notwithstanding, the personnel records of the accused superior officer do confirm that he served with the Veteran at Fort Ord during the time period in question. During the Veteran's subsequent Reserve service, the Veteran was awarded the Army Achievement Medal for services performed during multiple periods of service. In August 1986, the Veteran received another letter of commendation. In addition, he was promoted to Sergeant in February 1988 and later to Staff Sergeant in December 1989. The personnel records do indicate that the Veteran had multiple unexcused absences from his Reserve service in 1991. He ultimately was honorably discharged from the United States Army Reserves in May 1992. Medical records indicate that the Veteran was diagnosed with HIV between 1989 and 1991, depending on the report. A January 1990 VA treatment record included the Veteran's reports that his psychiatric symptoms began in 1984, three months prior to his separation. The Veteran described the symptoms as intermittent sadness, anger/irritability, confusion ("dissociation"), headaches, and blurred vision. The Veteran began treatment for drug abuse in October 1990. The Veteran was afforded a VA psychiatric examination in March 1991, but did not report any in-service sexual harassment or abuse and was not diagnosed with PTSD at that time. In fact, the examiner stated that the Veteran denied PTSD symptoms. Moreover, the Veteran denied during the examination that anything in service bothered him. The examiner's comment on the diagnosis of depression was, "[The Veteran] said that he was happy in the service and feels that he is very different than what he was when he was in the service." A May 1991 treatment record documented a positive HIV test. The Veteran denied IV drug use at that time, but did acknowledge heterosexual contacts. The Veteran was admitted to an abuse treatment program for cocaine dependence in October 1994. During his hospitalization, the Veteran denied childhood sexual abuse, but there is no indication that he was asked about or otherwise discussed sexual abuse during service. In a July 1995 discharge summary, it was noted that the Veteran reported being at risk for HIV and that he had, in fact, tested positive for HIV, although the basis for that risk was not specifically reported. In November 1998, during treatment for cocaine dependence the examination report specifically noted that the Veteran did not report any recent or past sexual abuse. During an October 2002 VA psychiatric examination the Veteran failed to report or discuss in-service sexual trauma and the examiner did not diagnose PTSD. In November 2002, the Veteran responded to a form question about sexual abuse as a child or as an adult in the affirmative. In another November 2002 treatment note, there is a notation that the Veteran reported one or more episodes of sexual trauma during service. In April 2003, the Veteran reported sexual abuse as a child between the ages of 10 and 15, but refused to talk about it further. At the same time, he also reported sexual abuse during active service. Again, however, he refused to discuss it. The treatment provider's assessment included rule out PTSD. A July 2003 record included an Axis I assessment of rule out anxiety disorder / PTSD (due to experiences in childhood). In August 2003, during treatment the Veteran mentioned for the first time that he might have PTSD. Later in August 2003, the Veteran stated that he had experienced trauma that he believed had caused PTSD, but was unwilling to discuss it. In a May 2007 Written Brief Presentation, the Veteran's representative raised the issue of the Veteran having been sexually assaulted in service by his First Sergeant and suggested that such could have caused or contributed to the Veteran's depression. The Veteran was afforded a VA psychiatric examination in May 2008. The examiner noted the Veteran's reports of sexual abuse while in service and concluded that such a problem could contribute to his diagnosed depressive disorder. However, the examining psychiatrist did not find that the Veteran's reports and symptoms warranted a diagnosis of PTSD or other psychiatric disorder other than depressive disorder not otherwise specified. A May 2009 VHA medical opinion included extensive documentation of the medical evidence of record. The psychiatrist considered the evidence, but did not make a finding of PTSD, but rather confined her comments to the etiology of the Veteran's previously diagnosed depression and anxiety. Multiple VA treatment records include diagnoses of PTSD secondary to military sexual trauma (MST). The Veteran was afforded a VA examination for his claimed PTSD in July 2013. The examiner noted review of the claims file and medical records. The Veteran reported that while serving at Fort Ord he was harassed by his superior. Specifically, the Veteran stated that the individual would "brush up against me, over a period of time it kept happening and I was approached. Having an erection, eventually it led to him offering me a promotion and things." In addition, the Veteran reported, "He would talk to me about sex. He would call me in and out all the time and make statements... About sucking." The Veteran discussed his current symptoms, which included depressed mood, frequent awakening during the night, and the possibility of bad dreams, but he denied remembering them. He was able to nap during the day. The Veteran denied avoidance, reexperiencing, or increased arousal. Based on the foregoing, the examiner concluded that the Veteran did not meet the DSM-IV criteria for PTSD. The examiner noted that the Veteran carried a diagnosis of PTSD through the mental health department, but the psychiatrist stated that the criteria were not reported during the current examination and were not noted in the record. Having reviewed the complete record, the Board concludes that the preponderance of the evidence is against finding that the Veteran has had a PTSD disability at any point during the appellate time period that was incurred in or is otherwise related to his military service. In that regard, in order to warrant service connection, the threshold requirement is competent medical evidence of the existence of the claimed disability at some point during a veteran's appeal. See McClain v. Nicholson, 21 Vet. App. 319 (2007) (requirement that a current disability be present is satisfied "when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim...even though the disability resolves prior to the Secretary's adjudication of the claim"); Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992). While the Board recognizes the Veteran's sincere belief in his claim and description of his symptoms, the most competent medical evidence of record does not show that the Veteran meets the DSM-IV criteria for a diagnosis of PTSD during any period of his appeal. In reaching that conclusion, the Board acknowledges that there is potentially conflicting evidence as to the existence of PTSD during the appellate time period. As discussed above, multiple VA treatment records include diagnoses of PTSD secondary to MST. By contrast and as discussed above, the July 2013 VA examiner specifically considered the Veteran's claims and the other evidence of record, including the VA treatment records diagnosing PTSD secondary to MST, and concluded that the Veteran did not meet the DSM-IV criteria for PTSD. In context, the examiner clearly concluded that the Veteran did not meet the criteria for PTSD at any point in the appellate time period, as the psychiatrist specifically noted that the criteria necessary under the DSM-IV for a diagnosis of PTSD were not found anywhere in the record. The Board finds the examiner's discussion and reconciliation of her conclusions with the VA treatment records compelling. As discussed above, the July 2013 VA examiner considered the Veteran's assertions and the prior diagnoses of PTSD secondary to MST, but specifically noted that the Veteran did not meet the criteria for a diagnosis based on his currently reported symptoms or his symptoms reported in the medical records, on which the other diagnoses were based. In that regard, the Board acknowledges that VA may presume that a diagnosis made by a mental health care professional was made in accordance with the DSM-IV, see Cohen, 10 Vet. App. at 140; however, in this case, in light of the July 2013 VA examiner's conclusions that include a detailed rationale and the absence of any evidence that the treatment providers diagnosing PTSD secondary to MST examined the Veteran's service treatment records, personnel files, or early post-service records, the Board finds the conclusions of the July 2013 VA examiner to be of significantly greater probative weight and ultimately to outweigh the treatment providers' notations of PTSD secondary to MST. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (explaining that factors affecting the probative value of a medical opinion are whether the opinion is based on sufficient facts or data, is the product of reliable principles reliably applied to the facts, and the reasoning employed by the expert). The Board also has considered the Veteran's assertions that he has a current diagnosis of PTSD. The Veteran certainly can attest to factual matters of which he has first-hand knowledge, such as experiencing depression or other psychiatric symptoms, and his assertions in that regard are entitled to some probative weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). In addition, the Board recognizes that lay persons are competent to provide opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Given the Veteran's lack of demonstrated medical expertise, the Board concludes that his statements regarding a diagnosis of PTSD and any link between such a diagnosis and his military service are significantly less probative than the conclusions of the July 2013 VA examiner. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). In summary, the most probative evidence of record concludes that the Veteran does not have a current diagnosis of PTSD, nor has he had PTSD at any point during the appellate time period. In light of the foregoing, the Board finds that the preponderance of the evidence is against the claim, and the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). ORDER Entitlement to service connection for PTSD is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs