Citation Nr: 1330791 Decision Date: 09/25/13 Archive Date: 09/30/13 DOCKET NO. 12-21 568 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for depressive disorder, not otherwise specified. 2. Entitlement to service connection for posttraumatic stress disorder. REPRESENTATION Appellant represented by: J. Michael Woods, Attorney at Law ATTORNEY FOR THE BOARD W. Yates, Counsel INTRODUCTION The Veteran served on active duty from June 1968 to July 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The issue on appeal has been recharacterized to properly reflect the psychiatric disorders diagnosed during the course of this appeal. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled); McClain v. Nicholson, 21 Vet. App. 319 (2007). FINDINGS OF FACT 1. The Veteran's current depressive disorder, not otherwise specified, cannot be reasonably disassociated from his active duty service. 2. The Veteran does not have PTSD due to his military service. CONCLUSIONS OF LAW 1. The criteria for service connection for depressive disorder, not otherwise specified, have been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013). 2. The criteria for service connection for PTSD have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304(f) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2013). Proper notice from VA must inform the claimant of any information and 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements apply 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/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. The RO's May 2010 letter advised the Veteran of the foregoing elements of the notice requirements. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); see also Bernard v. Brown, 4 Vet. App. 384, 394 (1993). With respect to the Dingess requirements, the May 2010 letter provided the Veteran with 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. Accordingly, the RO satisfied the notice requirements with respect to the issues on appeal. The duty to assist the Veteran has also been satisfied. The RO has obtained the Veteran's available service treatment records, and all VA and private treatment records identified by the Veteran. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In December 2010, a VA examination for PTSD was conducted and a medical opinion obtained. The VA examination was performed by an examiner who reviewed the Veteran's psychiatric history with him, examined the Veteran, and included rationale for the conclusions reached. In addition the this examination, the Veteran has submitted a private psychiatric examination report, dated in August 2013, which was conducted in a similar manner. These two examinations are adequate for evaluation purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The Veteran has not claimed that either examination was inadequate. There is no sign in the record that additional evidence relevant to the issues being addressed is available and not part of the record. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). 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, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury or disease in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent." However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (2010); a link, established by medical evidence, between current symptoms and an inservice stressor; and credible supporting evidence that the claimed inservice stressor occurred. 38 C.F.R. § 3.304(f). The United States Court of Appeals for Veterans Claims has held that [w]here it is determined, through recognized military citations or other supportive evidence, that the Veteran was engaged in combat with the enemy and the claimed stressors are related to such combat, the Veteran's lay testimony regarding claimed stressors must be accepted as conclusive as to their actual occurrence and no further development for corroborative evidence will be required, provided that the Veteran's testimony is found to be "satisfactory," e.g., credible, and "consistent with the circumstances, conditions, or hardships of [combat] service." Zarycki v. Brown, 6 Vet. App. 91, 98 (1993); see also 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304. Furthermore, if the claimant did not engage in combat with the enemy or if the claimed stressors are not related to combat, then the claimant'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); Moreau v. Brown, 9 Vet. App. 389 (1996); Dizoglio v. Brown, 9 Vet. App. 163 (1996). Service department records must support, and not contradict, the claimant's testimony regarding noncombat stressors. Doran v. Brown, 6 Vet. App. 283 (1994). Effective July 12, 2010, VA amended its adjudication regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the required in-service stressor. Specifically, the final rule amends 38 C.F.R. § 3.304(f) by redesignating current paragraphs (f)(3) and (f)(4) as paragraphs (f)(4) and (f)(5), respectively, and by adding a new paragraph (f)(3) that reads as follows: (f)(3) If a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of [PTSD] and that the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. Compare 38 C.F.R. § 3.304(f) (2009), with 75 Fed. Reg. 39843 (2010). A. Presumption of Sound Condition Every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111. History of a preservice condition provided by the Veteran at the time of his or her entrance examination does not, in itself, constitute a notation of a preexisting condition. 38 C.F.R. §§ 3.304(b)(1); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1995). The Veteran's March 1968 pre-induction examination noted his history of a preservice hospitalization for a nervous breakdown. In the summary of defects and diagnoses section, the examiner stated, "? nervous breakdown." Despite the Veteran's reported history, the induction examiner concluded that the Veteran was qualified for service, and listed the Veteran's psychiatric status under his "PULHES" profile as a "1". The "PULHES" profile reflects the overall physical and psychiatric condition of an individual on a scale of 1 (high level of fitness) to a 4 (medical condition or physical defect that is below the level of medical fitness required for retention in the military service). The "P" stands for "physical capacity or stamina," the "U" indicates "upper extremities," the "L" is indicative of "lower extremities," the "H" reflects the condition of the "hearing and ears," the "E" is indicative of the "eyes," and the "S" stands for "psychiatric condition." Odiorne v. Principi, 3 Vet. App. 456, 457 (1992). Under these circumstances, the Board finds the presumption of sound condition is applicable to the Veteran's claim. To rebut the presumption of sound condition, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004) (emphasis added). Clear and unmistakable evidence is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that "clear and convincing" burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than clear and unmistakable evidence). It is an "onerous" evidentiary standard, requiring that the no-aggravation result be "undebatable". Cotant v. West, 17 Vet. App. 116, 131 (2003) (citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993) (citing Akins v. Derwinski, 1 Vet. App. 228, 232 (1991)) and Vanerson, 12 Vet. App. at 258, 261; id. at 263 (Nebeker, C.J., concurring in part and dissenting in part). A presumption is an assumption of fact resulting from a rule of law which requires such fact to be assumed from another fact or group of facts found or otherwise established in the action. Black's Law Dictionary 1067 (5th ed. 1979). Therefore, where the presumption of sound condition at entrance to service cannot be rebutted, the fact for which the presumption stands--that is, that the Veteran was in sound condition at entry to service as to the disability for which he seeks service connection--must be assumed as a matter of law. Accordingly, service connection may not be granted on the basis of aggravation of a preexisting disease or injury in such a case. Rather, where the government fails to rebut the presumption of soundness under section 1111, the Veteran's claim must be considered one for service incurrence or direct service connection. See Wagner, 370 F.3d at 1094, 1096 (indicating that, in cases where the presumption of soundness cannot be rebutted, the effect is that claims for service connection based on aggravation are converted into claims for service connection based on service incurrence). The Veteran's service treatment records revealed multiple incidents of psychiatric treatment. A June 1968 treatment report noted that he was drunk and crying, and that he probably had chronic emotional problems. The report indicated, however, that an evaluation was not possible at that time, and that the Veteran was prescribed Thorazine. A March 1969 treatment report noted the Veteran's complaints of feeling nervous. The report listed an assessment of nerves, and indicated that he was prescribed Valium. A May 1969 inservice treatment report noted the Veteran's complaints of nervousness and butterfly stomach. The report listed a diagnosis of nervousness, and noted that the Veteran was prescribed Librium. A July 1969 treatment report noted the Veteran's complaints of uncontrollable shaking. The report noted that he would be referred to mental health the following morning, and that he was prescribed Thorazine. Post service treatment records, beginning in 2010, reflect diagnoses of PTSD and depressive disorder, not otherwise specified. In December 2010, a VA examination for PTSD was conducted. The VA examiner noted that the Veteran's claims file had been reviewed. In discussing his preservice psychiatric history, the report noted the Veteran's complaints of depression and of an abusive father. In discussing the Veteran's military history, the report noted that he served in Vietnam, that he had been exposed to enemy fire many times, and that he had a scar from a bayonet wound. In discussing his legal history, the Veteran indicated that he had been arrested over 30 years ago for striking his daughter; and that he had been convicted of a sex crime with a child, a charge which he continues to deny. Following a mental status examination, the report concluded with a diagnoses of PTSD and depressive disorder, not otherwise specified. The VA examiner then opined that there was no evidence to suggest that the Veteran's military service created his PTSD. In support of this opinion, the VA examiner noted that the Veteran had reported childhood trauma capable of producing his PTSD. As for whether the Veteran had a psychiatric disorder during service, the VA examiner noted that the Veteran's preinduction examination noted complaints of depression, nervous stomach, sleep disturbance, and headaches, and that these "suggest some psychiatric difficulties pre service." In August 2013, the Veteran underwent a private psychiatric evaluation. The private examiner noted that the Veteran's claims file had been reviewed. Following a mental status examination, the report concluded with a diagnosis of depressive disorder, not otherwise specified. The private examiner noted that the Veteran had a fragility upon entering military service, that was disregarded, and that his mental health issues continued to deteriorate during his military service. In support of this opinion, the private examiner noted that the Veteran had honestly reported his preservice history of a nervous breakdown during his preinduction examination, and that his service treatment records document multiple psychiatric complaints, including depression, nervous stomach, sleep disturbance and headaches. Under these circumstances, the private examiner opined that the Veteran's current psychiatric disorder was related to his military service. After reviewing the evidence of record, the Board finds that the Veteran's current depressive disorder, not otherwise specified, is related to his military service. First, clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service has not been presented. Although the Veteran is shown to have had psychiatric symptoms prior to service, it remains unclear if these manifestations warranted a psychiatric diagnosis at that time. The VA examiner in December 2010 stated that his symptoms, "suggest some psychiatric difficulties preservice." This is significantly short of clear and unmistakable evidence of a preservice psychiatric disorder. In addition, the Veteran's service treatment records document multiple incidents of psychiatric treatment. Thus, it can not be shown, by clear and unmistakable evidence, that an aggravation of his psychiatric condition did not occur. The private examiner in August 2013 opined that the Veteran currently has depressive disorder, not otherwise specified, which was related to his military service. In support of this opinion, the private examiner cited to the Veteran's service treatment records which reflect multiple incidents of psychiatric treatment. The VA examiner in December 2012 diagnosed the Veteran with PTSD and depressive disorder, not otherwise specified. Although the VA examiner then attributed the Veteran's PTSD to stressors not related to his military service, no similar opinion was provided regarding the Veteran's depressive disorder, not otherwise specified. Accordingly, resolving all doubt in favor of the Veteran, service connection for depressive disorder, not otherwise specified, is warranted. As for Veteran's PTSD, the preponderance of the evidence is against the Veteran's claim. There is no evidence that the Veteran current has PTSD due to his military service, and a diagnosis of PTSD based on an independently verifiable inservice stressor is not shown. 38 C.F.R. § 3.304(f). The VA examiner did not attribute this condition to the Veteran's military service, and this condition was no diagnosed by the Veteran's private physician. Accordingly, service connection for PTSD is not warranted. ORDER Service connection for depressive disorder, not otherwise specified, is granted. Service connection for PTSD is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs