Citation Nr: 1331667 Decision Date: 10/02/13 Archive Date: 10/07/13 DOCKET NO. 09-38 033 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), Major Depressive Disorder (MDD), and anxiety disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. J. Houbeck, Counsel INTRODUCTION The Veteran had active service from July 1963 to June 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. In July 2013, the Veteran testified before the undersigned in a Travel Board hearing held at the RO. A copy of the hearing transcript has been associated with the claims file. 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 most probative medical evidence of record reveals that the Veteran does not have PTSD. 2. The Veteran's other diagnosed psychiatric disabilities, including MDD and anxiety disorder, are not shown to be etiologically related to a disease, injury, or event in service. CONCLUSION OF LAW Service connection for an acquired psychiatric disorder, to include PTSD, MDD, and anxiety disorder, 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 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 possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his 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 July 2007, November 2007, January 2008, and August 2009 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 letters 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. Several of 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 has 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. The Veteran has not reported any private treatment for his psychiatric problems. The Veteran has at no time otherwise 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 Board notes that the Veteran was provided a VA examination in October 2012, with an addendum in January 2013. At that time, the examiner concluded that the Veteran did not meet the DSM-IV criteria for PTSD and that it was less likely than not that the Veteran's anxiety disorder was related to his military service. As will be discussed in greater detail below, the examiner's opinions were based on review of the claims file and available medical records, the Veteran's reported history, his current symptoms, and an objective psychiatric examination. The Board, therefore, finds the October 2012 VA examination report and January 2013 addendum to be thorough, complete, and sufficient upon which to base a decision with respect to the Veteran's claim for service connection. 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). 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, MDD, and anxiety disorder are not classified as psychoses and, as such, service connection may not be granted on a presumptive basis. 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 the evidence establishes that the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. See 38 C.F.R. § 3.304(f)(1) (2013); see also, 38 U.S.C.A. § 1154(b) (West 2002 & Supp. 2012). Similarly, 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 posttraumatic stress disorder 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. See 38 C.F.R. § 3.304(f)(3). Otherwise, the law requires verification of a claimed stressor. Where a determination is made that the Veteran did not "engage in combat with the enemy," or the claimed stressor is unrelated to combat, the Veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor. See Moreau v. Brown, 9 Vet. App. 389, 395 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). In such cases, the record must include service records or other credible evidence that supports and does not contradict the Veteran's testimony. Doran v. Brown, 6 Vet. App. 283, 289 (1994). Moreover, a medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressors. See Moreau, 9 Vet. App. at 395-396; Cohen v. Brown, 10 Vet. App. 128, 42 (1997). The Veteran asserts that his service aboard the U.S.S. Forrestal causes him to suffer severe symptoms associated with PTSD or other psychiatric disorders. At different times over the course of his claim for entitlement to service connection for PTSD, the Veteran has reported numerous specific stressors. The Veteran initially reported that his problems stemmed primarily from the death of 132 former shipmates aboard the U.S.S. Forrestal in July 1967 shortly after the Veteran transferred off the ship. Later in the claims process, however, the Veteran included several additional claimed stressors, which include: the witnessing of several plane and helicopter crashes while serving on the U.S.S. Forrestal, including one instance where the pilot ejected from his plane and had his legs ripped off by a wire; an instance where jet fuel leaked on him during refueling and he was "burned from head to foot"; and an instance during refueling where a service member was struck and knocked into the air by a rapidly retracting fuel hose. The Veteran's service treatment records include no in-service reports of psychiatric problems, although there was a notation of nervous trouble on the Veteran's July 1963 Report of Medical History at entrance into service. The Veteran's psychiatric examination on separation was normal. Indeed, the Veteran does not report specific psychiatric symptoms in service or for years after service. Instead, the Veteran claims that he self-medicated with alcohol and became a "workaholic" to keep any psychiatric problems from surfacing, in order to provide for his family. The Veteran also has discussed a post-service incident while he was working for United Parcel Service in approximately 1973 or 1974 and a bomb exploded killing at least one friend and co-worker and injuring others. The claims file indicates that the Veteran first sought psychiatric treatment in October 2006. At that time, the Veteran stated that he was tortured over the incident on the U.S.S. Forrestal after his transfer and suffered from survivor's guilt. The diagnostic impression at that time was MDD. This diagnosis continued until approximately December 2008. At that time, the Veteran's treating psychiatrist formally continued the Axis I diagnosis of MDD, with anxiety, but noted in the "Barriers to Learning" section that the Veteran had PTSD and depression. There was no written discussion of the stressors on which a notation of PTSD was based. (In addition, the Board notes that several prior VA treatment notes had been titled "PTSD Note"; however, a diagnosis of PTSD was not made therein.) Thereafter, PTSD was included in the Veteran's "Active problems." This diagnosis of PTSD continued through September 2012. In October 2012, the Veteran was afforded a VA examination. The examiner noted review of the claims file and medical records. The Veteran discussed his above-noted in-service stressors. After reviewing the foregoing and conducting an interview and psychiatric evaluation of the Veteran, the examiner concluded that the Veteran did not meet at least two of the DSM-IV criteria for a diagnosis of PTSD. Instead, the examiner concluded that the Veteran met the criteria for a diagnosis of anxiety disorder, not otherwise specified (NOS). The examining VA psychologist concluded that the Veteran's diagnosed anxiety disorder, NOS, was not related to his military service because he did not present with mental health symptoms at the time of service that would have garnered a diagnosis of anxiety disorder and the Veteran reported the onset of his psychiatric symptoms around 2001 or 2002. In December 2012 the Veteran's diagnosis of PTSD was removed and changed to symptoms of PTSD, with a continued diagnosis of MDD, with anxiety. The treatment provider that had previously included a diagnosis of PTSD indicated that the basis for the change was the October 2012 VA examination report findings that the Veteran did not meet the criteria for a diagnosis of PTSD. This diagnosis has continued in the subsequent VA treatment records included in the Veteran's Virtual VA electronic claims file. The RO obtained an addendum opinion from the October 2012 VA examiner. The January 2013 addendum opinion again noted review of the claims file and medical records and that the Veteran did not meet the DSM-IV-TR diagnostic criteria for PTSD at the time of the October 2012 VA examination. Two of the reported stressors met Criterion A, but he did not meet the other criterion. The examiner also noted that the subsequent VA treatment records, discussed above, also changed the Veteran's diagnosis from PTSD and MDD, with anxiety, to MDD, with anxiety, and symptoms of PTSD because he did not meet the criteria for PTSD. The examiner reiterated the conclusion that the sole Axis I diagnosed psychiatric disability during the October 2012 VA examination, anxiety disorder, NOS, was not related to the Veteran's service because his described mental health symptoms did not begin until 2001 or 2002, "well after the incidents he described." PTSD 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 included diagnoses of PTSD between December 2008 and September 2012. By contrast and as discussed above, the October 2012 VA examiner specifically considered the Veteran's claims and the other evidence of record, including the VA treatment records diagnosing PTSD, and concluded that the Veteran did not meet the DSM-IV criteria for PTSD. The Board acknowledges that the October 2012 VA examination report and the January 2013 addendum limited the time period for which the PTSD diagnosis did not apply to the time of the October 2012 VA examination and did not foreclose the possibility that such a diagnosis could have been warranted at some earlier point in time. As to the diagnoses of PTSD prior to October 2012, 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, the most recent medical diagnoses of record have agreed that the Veteran does not meet the criteria for a diagnosis of PTSD. Moreover, the Board notes that the Veteran's initial treatments for psychiatric problems did not include conclusive diagnoses of PTSD and while he did carry a diagnosis of PTSD for several years during the appellate time period, from December 2008 through September 2012, beginning in December 2012 the Veteran's ongoing treatment provider has changed the diagnosis to MDD, with anxiety and symptoms of PTSD. Significantly, as discussed above, the December 2012 treatment record noted that the change was made pursuant to the findings in the October 2012 VA examination report that the Veteran did not meet the criteria for PTSD. The unquestioning change in diagnosis removing PTSD without a separate analysis of the DSM-IV criteria by the treatment provider who had included such a diagnosis on an ongoing basis for several years, certainly calls into question the use of the DSM-IV criteria by the VA treatment providers in making the initial diagnosis of PTSD. As discussed above, the initial and subsequent treatment records included a diagnosis of PTSD without any written discussion of the Veteran's stressors or other factors that serve as a basis for the diagnosis. Of even greater significance, the Veteran has not asserted different symptomatology between December 2008 and September 2012 that would explain why the Veteran met the DSM-IV criteria prior to the October 2012 VA examination, but not at that time. In context, therefore, the Board affords the October 2012 VA examination report and January 2013 addendum opinions' conclusions that the Veteran does not meet the DSM-IV criteria for a diagnosis of PTSD significant probative weight and affords no probative weight to the prior diagnoses of PTSD that were made without discussion of the stressors and symptoms on which such a notation was based. In light of the October 2012 VA examiner's conclusions that include a detailed rationale and the absence of any evidence that the treatment providers diagnosing PTSD examined the Veteran's service treatment records, personnel files, or early post-service records, the Board finds the conclusions of the October 2012 VA examiner to be the most probative evidence of record as to the existence of PTSD during the appellate time period. 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 October 2012 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). Other Psychiatric Disorders In addition, the Board is cognizant that the Veteran's claim of entitlement to service connection for PTSD encompasses all of his psychiatric disorders. 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). As noted, the Veteran also has been diagnosed with multiple disorders, including MDD, with anxiety, and anxiety disorder. The Board acknowledges that regulations provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. 3.303(d). In that regard, the record is negative for any complaints or findings of any psychiatric disorder in service, or of any psychosis having manifested within one year of separation. In addition, although the Veteran has identified several in-service stressors that he believes led to PTSD, there is no specific lay evidence of actual psychiatric symptomatology manifested while he was on active duty. To the extent that the Veteran's statements could be construed as contentions that his psychiatric problems began in service and are related to his current psychiatric diagnoses other than PTSD, the Board finds the conclusions of the October 2012 VA examiner of specifically greater probative value. The examiner considered the Veteran's contentions and the evidence of record and concluded that his current anxiety disorder was unrelated to his military service. The rationale for that opinion, namely that the Veteran's psychiatric symptomatology did not manifest until 2001 or 2002 would apply equally to his diagnosis of MDD, with anxiety, that was not made by the examiner or specifically discussed in her opinion. Thus, to any extent the Veteran now claims to have experienced psychiatric problems beginning in service, the Board finds these contentions problematic in light of his reports to the October 2012 VA examiner and during his July 2013 Board hearing. No medical professional has linked the Veteran's psychiatric disorders, other than PTSD, to his military service and, indeed, there is evidence to the contrary. The Board has considered the diagnoses of various psychiatric disorders in the treatment records. None of the diagnoses relate the Veteran's disability to his military service. As there is no competent evidence otherwise linking any current psychiatric disorder other than PTSD to service, the Board finds that the preponderance of the evidence is against granting service connection for any other psychiatric disorder. In summary, the Board concludes that the preponderance of the evidence is against the claim for service connection, and the benefit of the doubt rule enunciated in 38 U.S.C.A. § 5107(b) is not for application. There is not an approximate balance of evidence. 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 an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), Major Depressive Disorder (MDD), and anxiety disorder, is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs