Citation Nr: 1333824 Decision Date: 10/25/13 Archive Date: 11/06/13 DOCKET NO. 06-02 699 ) 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 Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from March 1968 to February 1970. This case comes before the Board of Veterans' Appeals (the Board) on appeal from an August 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which denied the Veteran's claim of entitlement to service connection for PTSD. In October 2009, the Veteran presented testimony in a travel board hearing before the undersigned, and a copy of the transcript has been associated with the claims folder. In January 2010 and October 2012, the Board remanded this matter for further development, which has been completed, and the case has been returned for appellate consideration. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. The Board has reviewed the documents in both the paper claims file and the electronic claims file in rendering this decision. FINDINGS OF FACT 1. There is no competent evidence of a diagnosis of PTSD meeting the DSM-IV criteria. 2. There is no competent evidence that an acquired psychiatric disorder is related to service. CONCLUSION OF LAW An acquired psychiatric disorder, to include PTSD, was not incurred in or aggravated by military service, and a psychosis may not be presumed to be have been incurred therein. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Stegall Considerations As noted above, the Board remanded this matter on two occasions. In January 2010, the Board instructed the RO/AMC to send the Veteran an updated notification letter, request that the Veteran identify any outstanding pertinent medical records, provide the Veteran with an examination, and to readjudicate his claim. Pursuant to the Board's remand, an updated notification letter was sent to the Veteran in March 2010, outstanding VA treatment records were associated with the Veteran's claims folder, he was afforded an examination in February 2011, and his claim was readjudicated in a May 2011 supplemental statement of the case. In October 2012, the Board determined that the February 2011 examination report was unclear and remanded the matter for a clarification opinion and readjudication of the claim. In November 2012, an addendum report was obtained, and the claim was readjudicated in a February 2013 supplemental statement of the case. Thus, there is compliance with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Duties to Notify and Assist In correspondence dated in June 2004, February 2005, and March 2010, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2013). Specifically, the RO notified the Veteran of: information and evidence necessary to substantiate the claim; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. The March 2010 letter also notified the Veteran of the process by which initial disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The claim was subsequently readjudicated in the May 2011 and February 2013 supplemental statements of the case. See Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (noting that VA cured its failure to afford statutory notice to the claimant prior to an initial rating decision by issuing a notification letter after the decision, readjudicating the claim, and notifying the claimant of such readjudication in the statement of the case). VA has done everything reasonably possible to assist the Veteran with respect to the issue decided herein in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2013). Service treatment records have been associated with the claims file. All identified and available treatment records have been secured. As the Board will discuss in detail in the analysis below, the Veteran was provided a VA examination in February 2011, and an addendum report was rendered in November 2012. Collectively, the reports reflect that the examiner reviewed the Veteran's past medical history, recorded his current complaints, conducted an appropriate interview examination, and rendered an appropriate diagnosis and opinion consistent with the remainder of the evidence of record. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4) (2013). The Veteran and his representative have not contended otherwise. Also, as noted above, the Veteran presented testimony in a travel board hearing before an Acting Veterans Law Judge. In this regard, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the RO official or Veterans Law Judge who conducts a hearing fulfill two duties to comply with this regulation. These duties consist of: (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked. This was done during the October 2009 hearing before the Board. Additionally, it is clear from the Veteran's testimony that he had actual knowledge of the elements that were lacking to substantiate his claim. Significantly, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has either identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Neither the Veteran nor his representative has asserted that VA has failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conducting of the Board hearing. Thus, the duties to notify and assist have been met. Analysis The Veteran essentially contends that he has an acquired psychiatric disability, to include PTSD, related to combat while serving in the Republic of Vietnam. In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013). In order to establish service connection for the claimed disorder, there must be (1) 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) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). In order to show a chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303(b) (2013). A recent decision of the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court), however, clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted on a presumptive basis for certain chronic diseases, including psychoses, if they are shown to be manifest to a degree of 10 percent or more within one year following the Veteran's separation from active military service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). This presumption does not apply in the present case as discussed below. In the case of a veteran who was involved in combat during service, if an injury or disease is alleged to have been incurred or aggravated in combat, such incurrence or aggravation may be shown by satisfactory lay evidence, consistent with the circumstances, conditions, or hardships of combat, even if there is no official record of the incident. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2013). "Satisfactory evidence" is credible evidence. Collette v. Brown, 82 F.3d 389, 392 (1996). Such evidence may be rebutted only by clear and convincing evidence to the contrary. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2013). Section 1154(b) allows combat veterans, in certain circumstances, to use lay evidence to establish the incurrence of a disease or injury in service. "However, the provisions of section 1154(b) do not provide a substitute for medical-nexus evidence. . ." Clyburn v. West, 12 Vet. App. 296, 303 (1999). Section 1154(b) serves only to relax the evidentiary burden to establish incurrence of a disease or injury in service. Id. PTSD Service connection for PTSD requires: (1) medical evidence diagnosing PTSD (the provisions of 38 C.F.R. § 4.125(a) require that a diagnosis of a mental disorder conform to the Diagnostic and Statistical Manual, Fourth Edition (DSM-IV)); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f) (2013); see Cohen v. Brown, 10 Vet. App. 128 (1997). Section 4.125(a) of 38 C.F.R. requires that diagnoses of mental disorders conform to the fourth edition of the DSM- IV and that if a diagnosis is not supported by the findings on the examination report, the rating agency shall return the report to the examiner to substantiate the diagnosis. Effective July13, 2010, VA has amended its rules for adjudicating PTSD claims under 38 CFR § 3.304(f) to relax the evidentiary standard for establishing the required in-service stressor in certain cases. Because the Veteran's claim was pending at the time of this amendment, the new regulation applies to his case. 38 C.F.R. § 3.304(f) previously only authorized VA to accept statements from Veterans who served in combat, as denoted by combat-related awards or decorations or other evidence sufficient to establish participation in combat, and former Prisoners-of-War , as sufficient to establish the occurrence of the claimed in-service stressor. The recent amendment of 38 CFR § 3.304(f), however, eliminates the requirement for corroborating evidence of the claimed in-service stressor if it is related to the Veteran's "fear of hostile military or terrorist activity." The main issue with regard to the specific claim of PTSD is whether the Veteran has a current diagnosis of PTSD. Treatment records are unclear as to whether the Veteran has a diagnosis of PTSD as there are diagnoses of both PTSD and rule-out PTSD. Due to the ambiguity in the record and pursuant to the Board's January 2010 remand, the Veteran was provided an examination in February 2011. Upon review of the claims folder and evaluation of the Veteran in accordance with the DSM-IV protocol for administering PTSD, the examiner specifically determined that the Veteran did not meet the criteria for PTSD. In this regard, the examiner cited to inconsistent reports of recalling nightmares and the Veteran's own admission that he did not have re-experiencing symptoms. While the Veteran reported becoming emotional when reminded about Vietnam and became tearful during the examination, he was unable to connect his emotional reaction to any particular event or explain why he was becoming tearful about his experiences in Vietnam. The Board finds that the February 2011 opinion as to the issue of whether the Veteran has a current diagnosis of PTSD is probative as it was definitive, based upon a complete review of the Veteran's entire claims file and electronic record, evaluation of the Veteran, and is supported by a rationale insofar as the Veteran fell well short of meeting the criteria for a PTSD diagnosis on several fronts. Accordingly, the opinion is found to carry significant weight. Among the 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, 448-9 (2000). Congress has specifically limited entitlement to service-connected benefits to cases where there is a current 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). Here, because the persuasive evidence of record demonstrates that the Veteran did not meet the diagnostic criteria for a diagnosis of PTSD, the Board finds that the criteria for service connection for PTSD are accordingly not met. In making all determinations, the Board has considered the lay assertions of record. In this regard, a layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (noting that a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). As to the Veteran's contentions that he has a diagnosis of PTSD, the Board acknowledges that the Veteran is competent to testify as to his symptoms. However, to the degree that such symptomatology satisfies the criteria for a diagnosed psychiatric disorder or is related to a current psychiatric disorder, the Board places far greater weight on the opinion of the February 2011 VA examiner. There is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render a diagnosis of PTSD. See 38 C.F.R. § 3.159(a)(1) (2013) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). While the Veteran is competent to report what he has experienced, he is not competent to diagnosis PTSD as the diagnosis for such is not readily subject to lay observation. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); Layno v. Brown, 6 Vet. App. 465 (1994). The Board gives more credence and weight to the VA examiner's finding as it was rendered after an extensive evaluation of the Veteran and review of the Veteran's medical history by a licensed medical professional. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b) (West 2002). An Acquired Psychiatric Disorder other than PTSD The record reflects that the Veteran has met Hickson element (1), current disorder. Throughout the record, the Veteran has been diagnosed with various disorders, to include anxiety disorder, depression, and psychosis. The February 2011 VA examination report showed that the Veteran was currently diagnosed with a psychotic disorder, not otherwise specified. Hickson element (1) is accordingly met. With respect to element (2), in-service disease or injury, the Board notes that a review of the service treatment records is negative for any findings or complaints of a psychiatric disorder. There is also no evidence of a psychosis within the one year presumptive period after service. See 38 C.F.R. §§ 3.307, 3.309(a) (2013). Accordingly, Hickson element (2) is not met with respect to disease. Turning to in-service injury, the Board notes that the Veteran has submitted a letter reflecting receipt of the Navy Commendation Medal with Combat Distinguishing Device, which list two separate combat instances where the Veteran performed exemplary and courageous action in the face of enemy fire. There is no doubt that the Veteran is a combat Veteran, and his assertions of combat stressors are consistent with the circumstances of his service. See supra 38 U.S.C.A. § 1154(b) (2013); see also Pentecost v. Principi, 16 Vet. App. 124, 128-9 (2002). Therefore, Hickson element (2) is satisfied. With respect to crucial Hickson element (3), nexus, the question presented, i.e., the relationship, if any, between the Veteran's current disorder and his military service is essentially medical in nature. The Board is prohibited from exercising its own independent judgment to resolve medical questions. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). In noting a diagnosis of a psychotic disorder not otherwise specified, the February 2011 VA examiner indicated that she was unsure of the relationship between the disorder and Veteran's service. She noted that as there was no information available showing the relationship between service and the current disorder she was unable to provide an opinion without resorting to mere speculation. Pursuant to the Board's October 2012 remand, an addendum report was rendered in November 2012. Upon review of the claims folder, the VA examiner opined that the Veteran's current psychotic disorder was less likely as not related to service. She indicated that there was no evidence that the current disorder started in service, he was not diagnosed or treated for any mental health condition during service, he had a normal evaluation at service discharge, and his first contact with a mental health provider was not until 2001, which was 31 years after service discharge. The examiner further noted that psychotic disorders are usually genetic/biological based disorders and are not etiologically caused by stressors or environmental factors. The Board finds the November 2012 examination report to be highly probative, as it was based on a thorough review of the Veteran's medical history and cited to the relevant evidence of record. The opinion is also consistent with the other evidence of record which does not demonstrate that the Veteran's current disorder is related to service. Significantly, the record is negative for any documentation of any psychiatric problems during service other or for many years after service. The Board finds that the examiner's reasoning is well-explained and supported by the record, and cites to medical principles. For these reasons, it is highly probative evidence in the appeal. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995) (noting that the Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant). The Veteran has been accorded ample opportunity to present competent evidence in support of the claim. He has failed to do so. See 38 U.S.C.A. § 5107(a) (West 2002). The Court has held that "[t]he duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." See Wood v. Derwinski, 1 Vet. App. 190, 93 (1991). Indeed, there is no competent evidence of record showing that the Veteran's disorder is related to service. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. See Duenas v. Principi, 18 Vet. App. 512, 520 (2004). Lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (finding that the Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). However, in this case, assertions as to whether the Veteran's current disorder is related to service are etiological questions unlike testimony as to a separated shoulder, varicose veins, or flat feet, which are capable of direct observation. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007)(noting that a lay witness is capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 308-09 (2007) (finding that lay testimony is competent to establish the presence of varicose veins); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (discussing that unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Falzone v. Brown, 8 Vet. App. at 405 (finding that a lay person is competent to testify to pain and visible flatness of his feet). There is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render a medical opinion regarding the etiology of his current psychiatric disorder. While he is competent to report what he experienced and in fact the Board has accepted his lay testimony as evidence of an in-service event, the Veteran is not competent to ascertain the etiology of his current disorder as the causative factors for such is not readily subject to lay observation. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); Layno v. Brown, 6 Vet. App. 465 (1994). The Board gives more credence to the VA examiner's opinion that was rendered by a licensed mental health professional rather than a lay person in light of the complexity of the medical condition at issue. Based on the foregoing, Hickson element (3) is not met, the weight of the evidence is against the Veteran's claim, and the benefit of the doubt provision does not apply. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, the Board concludes that service connection for an acquired psychiatric disorder is not warranted. ORDER Service connection for an acquired psychiatric disorder, to include PTSD, is denied. ____________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs