Citation Nr: 1330757 Decision Date: 09/25/13 Archive Date: 09/30/13 DOCKET NO. 12-09 300 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder. REPRESENTATION Appellant represented by: Lisa Lee, Attorney ATTORNEY FOR THE BOARD Jonathan Tracy, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1969 to July 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran filed a claim for service connection for posttraumatic stress disorder (PTSD). In the Veteran's VA Form 9, the Veteran's attorney expressly expanded the claim to include service connection for an acquired psychiatric disorder, to include PTSD, alcohol dependency, and anxiety as the basis of this appeal. The Board notes that under Clemons v. Shinseki, 23 Vet. App. 1 (2009), the scope of a mental health disability claim includes any mental disability that reasonably may be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Therefore, the Veteran's claim for service connection for PTSD has been restated as the issue presented above. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals the documents are either duplicative of the evidence in the paper claims file or irrelevant to the issue on appeal. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claim herein decided has been accomplished. 2. The Veteran served in the Republic of Vietnam and earned a Combat Infantryman Badge (CIB). 3. The preponderance of the competent medical evidence of record shows that the Veteran has not had PTSD at any time during the pendency of the appeal. 4. The preponderance of the competent medical evidence of record does not show a nexus between any other diagnosed psychiatric disorder and the Veteran's military service. CONCLUSION OF LAW An acquired psychological disorder, to include PTSD, was not incurred or aggravated in service. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). 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, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The 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. Notice should be provided to the claimant before the initial unfavorable adjudication of the claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirement applies to all five elements of a service-connection claim, including: (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. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO provided the Veteran pre-adjudication notice by a letter dated in August 2008. The content of the notice letter complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). With respect to the Dingess requirements, the letter included notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date. VA is also required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to a claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In this instance, the claims file contains the Veteran's service treatment records, VA treatment records, a lay witness statement, the Veteran's attorney's argument, and the Veteran's own assertions in support of his claim. The Board has reviewed the file for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim for which VA has a duty to obtain; therefore appellate review may proceed without prejudicing him. See Bernard v. Brown, 4 Vet. App. 384 (1993). In addition, the RO arranged for a VA psychiatric examination in January 2009. The Board finds that the examination obtained in this case was more than adequate, as it provides findings relevant to the criteria for rating the Veteran's psychological problems and history. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The examiner noted that the claims file, including the medical records, was reviewed. The examiner also considered the Veteran's full history. The Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran. Accordingly, the Board finds that VA's duty to assist has been met. 38 C.F.R. § 3.159(c)(4). II. Service Connection Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). Entitlement to service connection for PTSD in particular requires medical evidence diagnosing PTSD in accordance with the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV); 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); 4.125(a). The DSM-IV criteria for a diagnosis of PTSD include: A) exposure to a traumatic event; B) the traumatic event is persistently experienced in one or more ways; C) persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness is indicated by at least three of seven symptoms; D) persistent symptoms of increased arousal are reflected by at least two of five symptoms; E) the duration of the disturbance must be more than one month; and F) the disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning. DSM-IV; 38 C.F.R. § 4.125. On the question of the occurrence of an in-service stressor to support the diagnosis of PTSD, the evidence necessary varies depending on whether or not the Veteran engaged in combat with the enemy. Gaines v. West, 11 Vet. App. 353, 358 (1998). If it is determined through military citation or other supportive evidence that a Veteran engaged in combat with the enemy, and the claimed stressor is related to combat, the Veteran's lay testimony regarding the reported stressor must be accepted as conclusive evidence as to the actual occurrence and no further development or corroborative evidence will be necessary, provided that the testimony is found to be satisfactory and consistent with the circumstances, conditions or hardships of such service. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d), (f). The phrase "engaged in combat with the enemy" means that the Veteran must have personally participated in a fight or encounter with a military foe or hostile unit or instrumentality. The fact that the Veteran served in a "combat zone" does not necessarily mean that he engaged in combat with the enemy. Whether or not a Veteran "engaged in combat with the enemy" must be determined through recognized citations or other official records. No single item of evidence is determinative, and VA must assess the credibility, probative value, and relative weight of each item. Any assertions of combat service are not ignored, but are evaluated along with other evidence. A mere assertion of combat service, alone, is insufficient to establish this fact. VAOPGCPREC 12-99; Zarycki v. Brown, 6 Vet. App. 91 (1993). In relevant part, 38 U.S.C.A. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. Medical evidence of a current disability and nexus is not always required to establish service connection. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Board acknowledges that lay testimony is competent regarding features or symptoms of injury or disease when the features or symptoms are within the personal knowledge and observations of the witness. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38 U.S.C.A. § 5107(b). III. Analysis The Veteran claims that he has an acquired psychiatric disorder, to include PTSD, which resulted from an in-service stressor. The Veteran claims that his stressor was the result of combat service. The Veteran's personnel records indicate that he served in the Republic of Vietnam and was awarded a Combat Infantry Badge. He served 4 months in Vietnam in a reconnaissance platoon. At the VA examination, the Veteran reported participating in ambushes, receiving enemy ground fire, and seeing killings in action. The RO conceded the existence of an in-service stressor in the January 2009 rating decision. The Board also finds that the Veteran experienced an in-service stressor related to his combat service in Vietnam. In determining whether service connection is warranted, the Board considered the following pieces of evidence: (1) service treatment records; (2) VA treatment records; (3) a VA examination; (4) the Veteran's attorney's arguments; and (5) the Veteran's own assertions in support of his claim. Each piece of evidence will be discussed in turn. The service treatment records are negative for complaints, treatment, or diagnosis of any mental health problems. The Veteran underwent a separation examination in July 1970. A psychiatric clinical evaluation at that examination resulted in normal findings. The claims file does not contain any private treatment records. VA treatment records dated from October 2006 to September 2008 are associated with the claims file. Included in the VA treatment records is a psychological evaluation done in August 2008. The Veteran provided a history at that evaluation. He reported that he did not realize he had any PTSD symptoms until after his home was robbed when no one was home in 1988. After that incident, he was initially angry but quickly became extremely fearful. He reported having difficulty sleeping and would sleep on the floor in the living room with a shotgun in his hand. He reported that he withdrew from others and only left home to go to work. He reported experiencing nightmares, suffering from paranoia, and being startled at loud noises. He began having disturbing memories and nightmares about his combat experiences in Vietnam. His employer sent him to see a psychiatrist. The Veteran was prescribed an antidepressant. He took the medication for a while but when the psychiatrist moved out of town, the Veteran stopped. In 2001, he reported being hospitalized for alcohol poisoning and resumed taking an antidepressant upon discharge. He continues to take the medication regularly. The diagnostic impression provided at the August 2008 evaluation included an Axis I finding of chronic PTSD. The records also provide a therapy recommendation for the Veteran. A VA examination was conducted in January 2009. The examiner took the Veteran's full mental health history. The Veteran claimed he sought mental health treatment in 1990 for depression related to the 1988 robbery. The Veteran also reported depression and anxiety related to charges of hitting a teenager in 2006 and the resulting legal consequences. The charges were dropped but the Veteran was still stressed about the legal fees. The Veteran reported being married for 24 years until his wife left in 1996 due to his anger and alcohol abuse. He has been in a couple of relationships but nothing long term. He reports getting paranoid and not wanting to be around people. He likes to stay home to drink and watch television. At the examination, the Veteran is reported to have been clean and casually dressed. His psychomotor activity and speech were unremarkable. His attitude was cooperative, friendly, relaxed, and attentive. His mood and affect were normal. He was oriented to person, time, and place. His thought process and content were unremarkable. He did not suffer from delusions and understood the outcome of his behavior. No panic attacks, homicidal thoughts, suicidal thoughts, or obsessive or ritualistic behavior was noted. The examiner noted poor impulse control and a history of violence. The Veteran reported having sleep impairment. He described having nightmares of someone on top of him and choking him. He feared this in Vietnam but it never happened. After the robbery, he armed himself, patrolled his yard, and controlled his wife by making her stay home. He was afraid on a daily basis for his and his wife's protection. He did not like feeling vulnerable. His alcohol abuse reportedly increased after the robbery. The examiner noted the PTSD type symptoms that the Veteran experiences. The Veteran suffers from recurrent distressing dreams of traumatic events. He has a markedly diminished interest or participation in significant activities. The Veteran also has difficulty falling or staying asleep, irritability or outbursts of anger, and hypervigilance. The examiner found, however, that the disturbance does not cause clinically significant distress or impairment in social, occupational or other important areas of functioning. The examiner found that the Veteran meets the DSM-IV stressor criterion. Four months of military service in Vietnam was identified as one source of stress. Another was the robbery. The Veteran reported to the examiner that the robbery was more stressful and contributed too many of his paranoid, controlling, and social rejection tendencies. The examiner also noted that the alcohol abuse is a complicating factor. The examiner concluded that the Veteran does not meet the criteria under the DSM-IV for a diagnosis of PTSD. The Veteran's Axis I diagnosis was for anxiety NOS (not otherwise specified) and alcohol dependence. His global assessment of functioning score was 60. The examiner opined that the Veteran's present mental condition is less likely as not (less than 50/50 probability) caused by or a result of military service in Vietnam. Instead, the examiner opined that the Veteran's current condition is the result of the home robbery. The rationale provided is that the Veteran reports that his home robbery was the precipitating event that triggered his paranoia, control tendencies, alcohol abuse, and social withdrawal. The examiner opined that alcohol dependence "may be the primary difficulty at this time. Secondary symptoms of depression and anxiety may also be a part of the clinical picture." The preponderance of competent medical evidence weighs against a finding that the Veteran has a current diagnosis of PTSD. The Veteran provided lay statements in support of his claim. As discussed above, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. However, the Veteran is not competent to provide a medical diagnosis and medical nexus opinion. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran alleges that his PTSD was dormant between his time in Vietnam and the home robbery. The robbery, he asserts, brought the PTSD to the surface. The Board finds that the Veteran is not competent to make that diagnosis. Further, the VA examiner, who was competent to provide a diagnosis, did consider the Veteran's service and full history and medically concluded that the Veteran does not have PTSD caused from an in-service stressor. The Veteran's attorney also provided an argument dated in June 2011. The attorney argued that the VA examination was inadequate because the medical opinion does not contain sufficient detail. The attorney also argued that the robbery was not the stressor that caused the Veteran's PTSD. Instead, the robbery "reactivated" the Veteran's combat-related PTSD. In support of this contention, the attorney cites to the VA treatment records discussed above, specifically the August 2008 evaluation. The attorney argues that at "a minimum, there are 2 medical opinions of record - one which supports service connection for PTSD and one which does not support service connection for PTSD." In support of the delayed or late-onset PTSD of the Veteran, the attorney included three pieces of evidence. These include: (1) a public statement from VA's Under Secretary of Health in 2004; (2) an article from the Journal of Psychological Nursing dated in 2008; and (3) an article from www.epigee.org. All three support the position that the onset of PTSD can be well after a stressor occurs. Finally, the veteran provided a witness statement dated in January 2009. The statement provides a description of symptoms that the Veteran currently suffers from, including: flashbacks, alcoholism, anxiety, sleep problems, and social isolation. This lay evidence is competent to provide descriptions of the Veteran's symptoms, but not to provide an opinion on the nexus between the Veteran's service and his current psychological problems. The same history of symptoms was considered by the examiner at the January 2009 examination. In assessing medical evidence, whether a physician provides a basis for his medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-89 (2000). The weight of a medical opinion is diminished where that opinion is ambivalent, based on an inaccurate factual premise, based on an examination of limited scope, or where the basis for the opinion is not stated. See Sklar v. Brown, 5 Vet. App. 140 (1993); Reonal v. Brown, 5 Vet. App. 458 (1993); Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993); Swann v. Brown, 5 Vet. App. 229, 232 (1993). In assessing all of the evidence, the Board finds that service connection cannot be granted. First, the competent medical evidence does not support a finding that the Veteran has a current diagnosis of PTSD. The VA outpatient treatment records do indicate a "diagnostic impression" of PTSD. However, this record is much less detailed than the only other objective medical evidence in the claims file, the VA examination report, which conclusively found that the Veteran does not have PTSD. Moreover, the VA examiner's opinion that the current psychiatric problems are not related to service because they did not arise until an event (a robbery) that occurred approximately 18 years after service seem quite logical. The Board notes that the articles provided by the Veteran's attorney do not offer any probative evidence specific to the Veteran. Further, the VA examiner knew of the Veteran's prior service in Vietnam and the Veteran's entire mental health history and concluded that the Veteran's service in Vietnam did not cause PTSD. Rather, the home robbery was the cause. Service connection for PTSD, as discussed above, requires medical evidence of a clear diagnosis of PTSD, an in-service stressor, and a link, established by medical evidence, between the current symptoms and the claimed in-service stressor. The first and third prongs of this test are not met. The VA examiner did not diagnose PTSD and concluded that there was not a link between the Veteran's service and his current mental health problems. Therefore, service connection for PTSD cannot be granted. Similarly, the Board concludes that service connection cannot be granted for any other acquired psychological disorder. The evidence clearly establishes that the Veteran did not complain of, or receive treatment for, any mental health problems during service. The only competent medical treatment evidence of record indicates that the Veteran did not begin receiving mental health treatment until after the home robbery in July 1988, 18 years after he was discharged. While the Veteran does have a current diagnosis for anxiety and alcohol dependence, there is no competent evidence linking those problems to the Veteran's service. Accordingly, the preponderance of the evidence is against the claim. The Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. The Board is unable to identify a reasonable basis for granting service connection in this case. Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). ORDER Entitlement to service connection for an acquired psychological disorder, to include posttraumatic stress disorder, is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs