Citation Nr: 1333856 Decision Date: 10/25/13 Archive Date: 11/06/13 DOCKET NO. 10-15 583 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: New Jersey Department of Military and Veterans' Affairs ATTORNEY FOR THE BOARD S. Grabia, Counsel INTRODUCTION The Veteran served on active duty from April 1975 to June 1978. While his military personnel records also reflects a period of service of 1 year, 9 months, and 2 days of prior service (from July 1973 to April 1975), the file contains a DD214 only for the period from April 1975 to June 1978. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. In characterizing the issues on appeal, the Board has considered the decision of the U.S. Court of Appeals for Veterans Claims (Court) in Clemons v. Shinseki, 23 Vet. App. 1 (2009) where the Court held that, when the Veteran specifically requests service connection for a particular psychiatric disorder, but the medical record includes other psychiatric diagnoses, the claim may not be narrowly construed. In light of this holding the relevant issue on the title page has been recharacterized as listed above. In July 2011 and again in November 2012, the Board remanded the issue of entitlement to service connection for an acquired psychiatric disorder, to include PTSD for additional development. FINDINGS OF FACT 1. PTSD has not been attributed to a verified stressor or an alleged stressor consistent with the Veteran's service. 2. The preponderance of the evidence is against a finding that the Veteran currently has a confirmed diagnosis of PTSD. 3. The weight of the competent evidence shows that the Veteran's currently diagnosed anxiety is not related to his period of service but rather is related to his diagnosed personality disorder. 4. The weight of the competent evidence shows that the Veteran's currently diagnosed depression is not related to his period of service but is related to his diagnosed personality disorder. CONCLUSION OF LAW The criteria for establishing service connection for an acquired psychiatric disability, to include PTSD, have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION In January and April 2009 letters, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2013) and 38 C.F.R. § 3.159(b) (2013). 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 he was expected to provide. The Veteran was informed of the process by which initial disability ratings and effective dates are assigned, as required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The "duty to assist" contemplates that VA will help a claimant obtain records relevant to the claim, whether or not the records are in Federal custody, and that VA will provide a medical examination when necessary to make a decision on the claim. 38 C.F.R. § 3.159 (2013). VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2013). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA treatment and January 2009 and August 2012 VA examinations with several clarifying addenda. Moreover, his statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. The issue currently on appeal was remanded in July 2011 and November 2012 in order to request inpatient records from the Madigan Army Medical Center from April through June 1978; for the Veteran to provide information on any treatment he had received for his mental disability and signed release forms for each provider; and, to provide him with VA mental disorders examinations. The Board finds that there has been substantial compliance with the prior remand instructions. The August 2011 VA examination is adequate because, as shown below, it was based upon consideration of the Veteran's pertinent medical history, his lay assertions and current complaints, and because the reports describe the disability in detail sufficient to allow the Board to make a fully informed determination. Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). Moreover, the examiner responded to the specific inquiry posed by the Board. Additionally, the AMC issued a supplemental statement of the case to the Veteran at his last known address in August 2012, which was returned to the VA as undeliverable. None of the prior notices sent to the Veteran at this address had been returned as undeliverable. Additional correspondence sent to the Veteran has also been returned as undeliverable. In any event, the Veteran did not notify VA that his address had changed, and the AMC verified that the Veteran's current address was consistent with that used for previous mailings. In this regard, the duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In the normal course of events, it is the burden of the Veteran to keep VA apprised of his whereabouts. If he does not do so, there is no burden on the part of VA to turn up heaven and earth to find him. See Hyson v. Brown, 5 Vet. App. 262, 264 (1993). Based on the above, the Board has met the duties to notify and assist. No further notice or assistance to the Veteran is required for the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Criteria Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. 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). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as psychoses, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Without a showing of such "chronic disease," service connection cannot be established solely on the basis of continuity. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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). Defects are defined as 'structural or inherent abnormalities or conditions which are more or less stationary in nature.' VAOPGCPREC 82-90. Service connection is generally precluded for any such defects. However, evidence of additional disability resulting from a mental disorder that is superimposed upon and aggravates a congenital defect such as a personality disorder or mental deficiency during service may be service-connected. See 38 C.F.R. §§ 3.303(c), 4.9, 4.127. Establishing service connection for PTSD requires: (1) medical evidence diagnosing PTSD; (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). See also Cohen v. Brown, 10 Vet. App. 128 (1997). A diagnosis of PTSD must be established in accordance with 38 C.F.R. § 4.125(a) , which simply mandates that, for VA purposes, all mental disorder diagnoses must conform to the fourth edition of the American Psychiatric Association 's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV). See 38 C.F.R. § 3.304(f). 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. 38 C.F.R. § 3.304(f) (1). See also 38 U.S.C.A. § 1154(b). The ordinary meaning of the phrase "engaged in combat with the enemy," as used in 38 U.S.C.A § 1154(b), requires that a Veteran have participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. The issue of whether any particular set of circumstances constitutes engagement in combat with the enemy for purposes of section 1154(b) must be resolved on a case-by-case basis. See VAOPGCPREC 12-99 (October 18, 1999). If there is no combat experience, or if there is a determination that the Veteran engaged in combat but the claimed stressor is not related to such combat, there must be independent evidence to corroborate the Veteran's statement as to the occurrence of the claimed stressor. Doran v. Brown, 9 Vet. App. 163, 166 (1996). Moreover, a medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressors. Cohen v. Brown, 10 Vet. App. 128, 142 (1997). Just because a physician or other health professional accepted appellant's description of his service experiences as credible and diagnosed appellant as suffering from PTSD does not mean the Board is required to grant service connection for PTSD. Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). The Board is not required to accept an appellant's uncorroborated account of his active service experiences. See Swann v. Brown, 5 Vet. App. 229, 233 (1993) and Wood v. Derwinski, 1 Vet. App. 190, 192 (1991). The regulations pertaining to PTSD were amended, and 38 C.F.R. §3.304(f) (3) no longer requires the verification of an in-service stressor if the Veteran was in a location involving "fear of hostile military or terrorist activity." Such can be evidenced by awards such as the Iraq Campaign Medal or the Vietnam Service Medal. Lay testimony alone can be used to establish the occurrence of an in-service stressor in these situations. The new regulatory provision requires that: (1) A VA psychiatrist or psychologist, or contract equivalent, must confirm that the claimed stressor is adequate to support a diagnosis of PTSD; (2) the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service; and (3) the Veteran's symptoms are related to the claimed stressor. Id. The liberalizing criteria contained in the new § 3.304(f) (3) will be applied to PTSD service connection claims that are pending as of the effective date of the regulation (July 13, 2010) and to claims filed on or after this effective date. Analysis Taking into account all relevant evidence, the Board finds that service connection is not warranted for any psychiatric disorder, to include PTSD. Initially, while the Veteran indicated during a January 2009 VA examination that he feared for his life during service, the evidence does not show that he served in a war zone or engaged in combat. Consequently, either the alleged stressors must be verified, or the stressors must at least be consistent with the places, types, and circumstances of the Veteran's service. May 1978 service treatment record from Madigan Army Medical Center, reveal that the Veteran was admitted in an agitated, anxious state with suicidal ideations. It was noted that he had a long history of situational difficulties, including serious conflicts with authority. His unit commander believed he was a very unsatisfactory soldier, although he had a good record during his first two years of service. Following service in Korea there appeared to have been some confusion about whether he had been reduced in grade. It was suspected that he had altered or forged part of his records. He was subsequently again reduced for being absent without leave (AWOL). Examination revealed no evidence of organic mental impairment or thought disorder. No diagnosis of an acquired mental disorder was made. The Veteran was given a general discharge shortly thereafter in June 1978. Post-service, the Veteran was afforded a VA examination in January 2009. He reported no outpatient psychiatric treatment since service. He was assessed with an Axis I diagnosis of PTSD, as well as cocaine and alcohol dependence in sustained full remission. The examiner did not indicate a specific stressor to which he felt the diagnosed PTSD was attributable. In an August 2011 VA examination the examiner reviewed the claims folder and discussed the records. He noted a previous diagnosis of an antisocial personality disorder and the January 2009 VA examination diagnosis of PTSD. The examiner thoroughly reviewed all available documents, and noted that: This examiner will respectfully disagree with [the VA examiner's] findings of 1/26/09 and will state for the record that there does not appear to be any evidence of PTSD and that all symptoms of anxiety, depression, substance abuse, etc., derive from his long standing personality disorder. This opinion states that there is a definite casual link between all reported symptoms and his personality disorder. In a January 2012 addendum to the August 2011 VA examination, the examiner noting that he contradicted the previous examiner's diagnosis adding: Based on the preponderance of evidence, including review of all treatment records, military history and prior exams, this examiner is of the opinion that the Veteran's subjective anxiety and depression are the result of his personality disorder. He has a history of disregard for rules and regulations; his symptoms appear to fluctuate as a consequence of how he perceives his needs are met by the environment...................... In a December 2012 addendum to the August 2011 VA PTSD examination, the examiner noted that he had been asked to opine on whether or not the Veteran's personality disorder was aggravated by his military service and whether or not there was a clear nexus between the Veteran's previous diagnosis of PTSD and anxiety and depression versus the current diagnosis of a personality disorder. He opined that: This examiner finds absolutely no nexus between the Veteran's military career and any potential exacerbation of this personality disorder. In effect, there is no nexus between this examiner's findings [and the Veteran's] military service. In a May 2013 addendum to the August 2011 VA PTSD examination, the examiner opined that based on review of the claims file, historical data, and all available evidence: I find this Veteran to suffer from a personality disorder which appeared to be longstanding ...... I see no evidence of post traumatic stress disorder and I see no evidence of a condition that was aggravated or exacerbated by military service. The Board notes that there are no other psychiatric diagnoses of record and no treatment for psychiatric problems post-service, per the Veteran's statements. Analysis Initially, the Board finds that service connection for PTSD is not warranted, as the Veteran does not have a confirmed diagnosis of PTSD at any time during the rating period on appeal. The Board acknowledges that a January 2009 VA examiner diagnosed the Veteran with PTSD. Despite such diagnosis, establishing service connection for PTSD also requires: credible supporting evidence that the claimed in-service stressor actually occurred and medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). See also Cohen v. Brown, 10 Vet. App. 128 (1997). In this case, the diagnosis of PTSD has not been attributed to a verified in-service stressor. The examiner's diagnosis was based on the Veteran's vague claimed stressors, that he saw his friends come back from a skirmish or nearly got shot or knifed by hiding enemy soldiers, and his dreams of being chased by the North Koreans through the bushes. The Board notes that the Veteran's service in Korea was 2 decades after the end of the Korean War, and he had no combat experience. The January 2009 VA examiner's diagnosis of PTSD has not been attributed to any verified stressors, and the relaxed provisions effective July 2010 do not apply, as the claimed events are not consistent with the circumstances of his service. Consequently, the requirements for establishing service connection for PTSD have not been met. With regard to psychiatric disabilities other than PTSD, the Board notes that in the subsequent August 2011 VA examination and January 2012, December 2012, and May clarifying addenda were provided by a psychologist and did not result in a diagnosis of PTSD. The diagnosis was a personality disorder with anxiety and depression. The examination was conducted by an examiner with the highest level of education and training. Moreover, the VA examiner addressed the diagnosis of PTSD by the January 2009 VA examiner, noting that he disagreed with this diagnosis and offered an explanation for his disagreement. The Board finds that the opinion of the January 2009 VA examiner was vague and conclusory and based on the Veteran's unconfirmed history of recurrent memories of "attacks and the killing of other soldiers and civilians." The opinion was not accompanied by adequate supporting rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); 38 C.F.R. § 3.102. Thus, such opinion is entitled to limited probative weight. By contrast, the August 2011 VA psychologist interviewed the Veteran, reviewed the claims folder, and conducted a mental status examination, concluding that his stressors and symptoms did not meet the criteria for a diagnosis of PTSD. The Board accepts this VA examiner's opinion as being the most probative medical evidence on the subject, as such was based on a review of all historical records, and contains detailed rationale for the medical conclusion. See Boggs v. West, 11 Vet. App. 334 (1998). Given the depth of the examination report, and the fact that the opinion was based on a review of the applicable record, the Board finds such opinion is probative and material to the Veteran's claim. See Owens v. Brown, 7 Vet. App. 429 (1995). The only assessment of PTSD provided by a medical provider with a similar level of training was the January 2009 report that included an assessment of PTSD and, as this examination and report did not contain any confirmed stressors and was based on vague and unconfirmed discussion or findings whatsoever regarding psychiatric stressors, the Board finds this assessment to have been based on an unconfirmed history provided by the Veteran and the examiner's opinion is entitled to limited probative weight. The Board has also considered the Veteran's belief that he has PTSD due to stressors incurred in service. In this regard, the Board calls attention to Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007), in which the Federal Circuit determined that 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 (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (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. The relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is a fact issue. Here, however, the criteria set forth in Jandreau have not been met. Indeed, while the Veteran is competent to identify symptoms such as depression and anxiety, the specific diagnosis of PTSD is not readily-observable as, for example, a broken leg would be. Indeed, symptoms that can be associated with PTSD can also be associated with a host of other psychiatric disorders. Moreover, regarding the third element above, while the record does contain a diagnosis of PTSD issued by a medical professional, such has been essentially invalidated by the more probative August 2011 VA examination finding that the criteria for that disorder has not been met. Again, the Board concludes that as the August 2011 VA examiner, with the highest level of education and training who actually provided the Veteran with a psychological evaluation failed to confirm a diagnosis of PTSD, the preponderance of the evidence is against a conclusion that the Veteran has a current diagnosis of PTSD. Service connection for PTSD may not be established without a current confirmed diagnosis of the disability. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). The Board must also find that entitlement to service connection for depression and anxiety is not established. The service treatment records clearly show that the Veteran was treated for a situational adjustment disorder with symptoms including anxiety and depression while on active duty, and the record reflects post-service diagnoses of depression and anxiety. As explained by the August 2011 VA examiner, the Veteran's anxiety and depression are related to his personality disorder in the context of not getting his way. Based on this reasoning, the VA examiner concluded that his depression and anxiety was not due to service. Moreover, there is no qualified medical opinion of record expressly relating the current diagnoses to any events of active service. Again, the in-service treatment has been found by the weight of the medical evidence to constitute manifestations of a personality disorder, which is not a disability for purposes of VA compensation. 38 C.F.R. § 3.303(c). Moreover, while service connection is available for additional disability resulting from a mental disorder that is superimposed on and aggravated a personality disorder, the December 2012 and May 2013 addenda weight against a finding that such occurred in the instant case. Moreover, no other competent evidence of record finds that the current symptomatology is the result of an aggravation of the personality disorder found to have been manifest in service. It is again acknowledged that a lay person may speak as to etiology as to nexus in some limited circumstances in which such nexus is obvious merely through lay observation. Jandreau, 492 F. 3d 1372 (Fed. Cir. 2007). However, the question of causation here involves a less immediately-observable relationship that is beyond the scope of the Veteran's competence to expound on. Indeed, the record here reveals other factors that have been attributed as the cause of anxiety and depression. Thus there is no obviously identifiable cause-and-effect between current symptoms and active service. In sum, there is no basis for a grant of service connection for PTSD or for any other acquired psychiatric disability. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, depression, and anxiety, is denied. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs