Citation Nr: 1330832	
Decision Date: 09/25/13    Archive Date: 09/30/13

DOCKET NO.  08-03 236	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUE

Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD).


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

K. R. Fletcher, Counsel


INTRODUCTION

The Veteran had active service from February 1969 to September 1970.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  This matter was before the Board in November 2011 when it was remanded for additional development. 

In addition to the paper claims file, there is a Virtual VA (VVA) electronic claims file associated with the Veteran's claim.  The documents in the VVA file include a September 2013 brief from the Veteran's representative.  The other documents are duplicative of the evidence in the paper claims file.


FINDINGS OF FACT

1.  The medical evidence of record does not support the conclusion that the Veteran meets the DSM-IV criteria for PTSD at any time during the appeal period based on the best medical evidence.

2.  Symptoms of a psychiatric disorder were not chronic in service.

3.  Symptoms of a psychiatric disorder have not been continuous since service separation. 

4.  The Veteran's current psychiatric disorder is not related to active service.


CONCLUSION OF LAW

The criteria for service connection for an acquired psychiatric disorder, to include PTSD, have not been met.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). 




REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Veterans Claims Assistance Act of 2000 (VCAA) 

The VCAA, codified in pertinent part at 38 U.S.C.A. §§ 5103 , 5103A, and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159, 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 that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) 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 Court further held that VA failed to demonstrate that "lack of such a pre-AOJ-decision notice was not prejudicial to the appellant, see 38 U.S.C. § 7261(b)(2) (as amended by the Veterans Benefits Act of 2002, Pub. L. No. 107-330, § 401, 116 Stat. 2820, 2832) (providing that '[i]n making the determinations under [section 7261(a)], the Court shall...take due account of the rule of prejudicial error')." 

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). 

Here, the Veteran was mailed a letter in July 2006 advising him of what the evidence must show and the respective duties of VA and the claimant in obtaining evidence, as well as the appropriate notice with respect to the disability-rating and effective-date elements of the claim.  The Veteran was provided complete notice prior to the initial adjudication of the claim in May 2007.

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 all available service personnel records, service treatment records and post-service treatment records have been 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 remanded the Veteran's appeal for additional action in November 2011, including to verify the Veteran's stressors and to schedule him for a VA examination.  To this end, the Veteran's stressors were verified and he underwent a VA examination in March 2012.  The examiner provided the requested opinions.  The Board finds that there has been substantial compliance with its remand instructions and additional remand is not required.  D'Aries v. Peake, 22 Vet. App. 97 (2008) (noting that substantial rather than strict compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)).

For all the foregoing reasons, the Board concludes that VA's duties to the claimant have been fulfilled with respect to the issue on appeal.

II.  Laws and Regulations

Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  

The condition at issue, an acquired psychiatric disorder (psychosis) other than PTSD, is a "chronic disease" listed under 38 C.F.R. § 3.309(a), therefore, 38 C.F.R. § 3.309(b) applies.  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  PTSD, not being a psychosis, is not considered a chronic disease under 38 C.F.R. § 3.309(a), and may not be service connected under 38 C.F.R. § 3.303(b).  Id.  

In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service.  38 C.F.R. § 3.303(d). 

Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  The Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability.  In the absence of proof of a present disability there can be no valid claim."  Brammer  v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992).

Service connection for PTSD requires: medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (conforming to 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).  The applicable regulation requires that the in-service stressor or traumatic event involve actual or threatened death, serious injury, or a threat to the physical integrity of self or others and the person's response involve intense fear, helplessness, or horror.  See DSM-IV § 309.81 (4th ed. 1994).

Effective July 13, 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:

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.  75 Fed. Reg. 39843 (July 13, 2010).

The provisions of this amendment apply to applications for service connection for PTSD that were appealed to the Board before July 13, 2010 but have not been decided by the Board as of July 13, 2010.  Thus, they apply to the Veteran's claim.

In adjudicating a claim for service connection for PTSD, the evidence necessary to establish the incurrence of a stressor during service will vary depending on whether or not the Veteran was "engaged in combat with the enemy."  See Hayes v. Brown, 5 Vet. App. 60, 66 (1993).  If it is determined through military citation or other supportive evidence that a veteran engaged in combat with the enemy, and the claimed stressors are related to combat, a veteran's lay testimony regarding the reported stressors must be accepted as conclusive evidence as to their actual occurrence and no further development or corroborative evidence will be necessary, provided that the testimony is found to be satisfactory, that is, not contradicted by service records, 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); Doran v. Brown, 6 Vet. App. 283, 289 (1994).  To gain the benefit of a relaxed standard for proof of service incurrence of an injury or disease, 38 U.S.C.A. § 1154(b) requires that a veteran have actually participated in combat with the enemy.  See VAOPGCPREC 12-99. 

If it is determined that a veteran did not engage in combat with the enemy, or the claimed stressor is not related to combat, a veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor.  In such cases, the record must contain service records or other corroborative evidence which substantiates or verifies a veteran's testimony or statements as to the occurrence of the claimed stressors.  See Zarycki v. Brown, 6 Vet. App. 91, 98 (1993).

In reviewing the evidence, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and continuity of current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). 

"Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology."  Savage v. Gober, 10 Vet. App. 488, 496 (1997), citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991).  Once evidence is determined to be competent, the Board must determine whether such evidence is also credible.  See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). 

Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional."  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir.2007).  In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis.  Id. at 1376-77; see also Buchanan v. Nicholson, 451 F .3d 1331, 1337 (Fed.Cir.2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept 14, 2009). 

In evaluating a claim, the Board's duty is to assess the credibility and probative weight of the evidence.  See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993). 

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

The Board has reviewed all the evidence in the Veteran's claims file.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by a veteran or obtained on a veteran's behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).

III.  Factual Background and Analysis

The Veteran seeks service connection for an acquired psychiatric disorder to include PTSD based on his service in the Republic of Vietnam.  As reflected in written submissions received in June 2006 and December 2006, he claims that in July 1970 he witnessed a military vehicle blow up with a fellow soldier inside; he stated that he was involved in the recovery of the vehicle, during which he found the soldier's bloody finger and dog tags.  He also reported witnessing a fellow soldier suffering severe injuries due a rocket attack in August 1970.  The Veteran claims that both incidents occurred while he was assigned to the 79th Maintenance Company.  The Veteran additionally claims that he experienced enemy rocket attacks and received heavy incoming fire near his military bunker in October 1969 and September 1970, while assigned to the 69th Heavy Equipment Company. 

The Veteran's service personnel records confirm his service in the United States Army from February 1969 to September 1970.  These records show that he served in the Republic of Vietnam from July 1969 to September 1970, to include service as a field wireman in a maintenance company.  These records are negative for evidence that the Veteran received any decorations or awards indicative of combat.  

The Veteran's STRs, including a September 1970 separation examination, are negative for complaints or findings related to a psychiatric disorder.

The medical evidence shows that the Veteran was diagnosed with cognitive disorder and "possible" PTSD during a June 2005 private neuropsychological assessment.  At that time he was experiencing memory problems, disorientation and numbness of emotions.

He was evaluated during an April 2006 VA mental health consultation, after which the examiner determined that two of the testing instruments were not valid.  Following the clinical examination, however, the examiner still rendered an Axis I diagnosis of PTSD, "per recent evaluation," in addition to diagnosing the Veteran with a generalized anxiety disorder and an adjustment disorder with depressed mood.  An April 2006 VA treatment record reflects that his recent job loss and financial stress may have triggered significant distress.  A June 2006 VA mental health progress note reported that recent psychiatric testing revealed possible chronic PTSD and cognitive disorder.  No additional psychiatric testing was conducted on examination; the diagnoses, per recent evaluation, included: generalized anxiety disorder; adjustment disorder with depressed mood; PTSD; and mild cognitive disorder.

Following remand of this case in November 2011, the AOJ made a determination (based on review of the Veteran's reported stressors, DD 214 and service records) that the stressor information was sufficient to support his claim.  Specifically, the AOJ noted that the Veteran's personnel records verified that he served within a place where the types of circumstances he described would have been present for onset of situations that caused fear of hostile military or terrorist activity.  

A March 2012 VA mental health examination report notes that the examiner reviewed all evidence in the claims file and examined the Veteran.  The Veteran reported, and review of the claims file showed, that he never sought psychiatric treatment until more than 30 years after his military service.  The diagnoses included dementia, not otherwise specified, with depression related to a general medical condition (specifically, the Veteran's physical constraints).  The examiner opined that dementia with depression has less than a 50 percent probability of being incurred in or caused by the Veteran's military service.  The examiner also stated that the examination findings did not support sufficient manifestation of symptoms for a diagnosis of PTSD.  The absence of symptoms related to range of re-experiencing, hyperarousal and avoidance were not at a level that supported the DSM-IV criteria for a diagnosis of PTSD.  

PTSD

With regard to the first element necessary for a grant of service connection (medical evidence of PTSD), while there are indications of PTSD in the claims file, the weight of the medical evidence of record indicates that the Veteran has not had a diagnosis of PTSD, in accordance with DSM-IV criteria, at any time during the appeal period.  See McClain, supra; Brammer, supra.

In this regard, the Board finds the 2005 private and 2006 VA diagnoses of PTSD to be of little probative value.  While these records demonstrate the presence of some symptoms of PTSD, they are not diagnoses of PTSD that meet the criteria of 38 C.F.R. § 4.125(a).  It does not appear that on any of these instances, the medical professionals took the time to actually assess whether the Veteran met the criteria for a diagnosis of PTSD per the DSM-IV.  Rather, it appears that the diagnosis was reflective of the fact that in prior treatment sessions it was thought that the Veteran might have PTSD.  

To the contrary, in the March 2012 VA mental disorders examination, the VA examiner opined that the Veteran did not have a diagnosis of PTSD that conformed to DSM-IV criteria.  The Board finds this assessment to be very probative.  The VA examiner who conducted the examination was identified as a licensed clinical psychologist.  The report notes that it was based on a psychiatric interview.  The report set forth in detail the Veteran's relevant social, military, and medical history.  The examiner opined that the Veteran did not present with PTSD during the examination.  The Board finds this opinion to be the most probative piece of evidence as it actually addresses the symptoms which would be needed for a diagnosis of PTSD to be rendered, but which the Veteran was not experiencing.  Unlike a more general psychiatric disorder like depression, a PTSD diagnosis is based on a specific set of criteria.  As this opinion is found to be the most probative, it is afforded the greatest weight, and therefore the Board concludes that the Veteran does not meet the criteria for diagnosis of PTSD.  It provides, as a whole, detailed reasoning that the Board finds persuasive. 

Finally, the Board notes that only those with specialized medical knowledge, training, or experience are competent to provide evidence on the question of diagnosis and causation.  See Jones v. Brown, 7 Vet. App. 134, 137 (1994).  To the extent that the Veteran asserts that he has PTSD related to service, as opposed to some other form of disability, as a lay person, he is not competent to offer an opinion on a matter clearly requiring medical expertise, such as providing a diagnosis or a medical nexus opinion regarding the claimed PTSD.  See Jandreau, supra. 

As such, the criteria for service connection for PTSD have not been met, and the Veteran's claim is denied.  See Brammer, supra.

Service Connection for a Psychiatric Disorder (other than PTSD)

Although the Veteran has been diagnosed with a psychiatric disorder other than PTSD (see March 2012 VA examiner's diagnosis of dementia, not otherwise specified, with depression), the record does not contain any medical evidence that the Veteran's any psychiatric disorder was manifested in service, or within a year of discharge.  The first diagnosis was in 2005, 35 years after the Veteran's discharge in 1970. 

The Board next finds that the weight of the evidence demonstrates that symptoms of a psychiatric disorder have not been continuous since service separation in 1970.  As noted above, the September 1970 service separation examination reflected that the Veteran was not diagnosed with any psychiatric disorder.  Curry v. Brown, 7 Vet. App. 59 (1994) (noting that contemporaneous evidence has greater probative value than history as reported by the veteran).  Following service separation in 1970, the evidence of record shows no complaints, diagnosis, or treatment for a psychiatric disorder until 2005. 

The absence of post-service findings, diagnosis, or treatment for 35 years after service is one factor that tends to weigh against a finding of continuous psychiatric symptoms after service separation.  See Buchanan (holding that the Board may weigh the absence of contemporaneous medical evidence as one factor in determining credibility of lay evidence, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and the medical documentation of a claimed disability is one factor to consider as evidence against a claim of service connection). 

Moreover, the evidence of record does not include any medical opinion that a current diagnosis of psychiatric disability is (or might be) related to the Veteran's service, and does not suggest that a current diagnosis of psychiatric disability might be related to his service.  In this regard, the March 2012 VA examiner's opinion is clearly against the claim.

The Veteran's believes that his psychiatric disability is related to his military service.  In this regard, the Board acknowledges Jandreau, supra, in which it was held a lay person may speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation.  Here, however, medical expertise is required to answer the question of whether the Veteran's current psychiatric disability is related to his active service.  The Veteran's lay opinion concerning this matter requiring medical expertise is of no probative value.

The Board has considered the benefit of the doubt doctrine; as the preponderance of the evidence is against the Veteran's claim, that doctrine does not apply.

Conclusion

For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for an acquired psychiatric disorder, to include PTSD, and the claim must be denied.  Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application.  See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. 


ORDER

Service connection for an acquired psychiatric disorder, to include PTSD, is denied.



____________________________________________
JONATHAN B. KRAMER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs