Citation Nr: 1334258 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 10-09 196 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for Post-Traumatic Stress Disorder (PTSD). 2. Entitlement to service connection for an acquired psychiatric disorder, other than PTSD, to include Social Phobia and Depressive Disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Chance, Associate Counsel INTRODUCTION The Veteran served on active duty with the Army National Guard from March 1983 to June 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision by the Lincoln, Nebraska, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which denied service connection for Post-Traumatic Stress Disorder (PTSD). The Board has included an issue of service connection for a disability characterized as "an acquired psychiatric disorder other than PTSD" in order to include all possible disorders. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (holding that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled). 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. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper files or are irrelevant to the issue on appeal. The issue of service connection for an acquired psychiatric disorder other than PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT 1. The Veteran has not had a diagnosis of PTSD related to an in-service stressor, made in accordance with the DSM-IV criteria at any time during the pendency of this claim. CONCLUSION OF LAW 1. The criteria for service connection for PTSD have not been met or approximated. 38 U.S.C.A. § 1110, 5103, 5103A, 5107; 38 C.F.R. § 3.102, 3.159, 3.303 REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. § 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. § 3.102, 3.159 and 3.326(a). Under VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); 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; and (3) that the Veteran is expected to provide. See also 38 C.F.R. § 3.159(b)(1). VCAA letters dated in May and October 2008 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, at 187. The Veteran was advised of the evidence necessary to substantiate a claim for service connection and 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. The May and October 2008 letters also explained to the Veteran how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice was provided to the Veteran prior to the initial adjudication of his claim, pursuant to Pelegrini v. Principi, 18 Vet. App. 112 (2004). Therefore, the Board finds that the duty to notify has been satisfied. The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and VA medical treatment records from VA Nebraska-Western Iowa Health System have been obtained and associated with the claims file. The Veteran has at no time referenced outstanding private medical or treatment records that he wanted VA to obtain or that he felt were relevant to the claim. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159(c)(2). 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 claims, as defined by law. See 38 C.F.R. § 3.159(c)(4). VA PTSD examinations were conducted in January 2010 and June 2010; the Veteran has not argued, and the record does not reflect, that this examination was inadequate for rating purposes. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Both the January and June 2010 examiners performed all of the required testing needed to determine presence of PTSD and its origin. As will be discussed in greater detail below, the examiner's opinion was based on review of the claims file and available medical records, the Veteran's reported history, his current symptoms, and a psychiatric examination. The Board, therefore, finds the January and June 2010 VA examination reports to be thorough, complete, and sufficient upon which to base a decision with respect to the Veteran's claim for service connection for PTSD. 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). There is no indication in the record that any additional evidence, relevant to the Veteran's alleged PTSD is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran has been given ample opportunity to present evidence and argument in support of his claim. All relevant evidence necessary for an equitable disposition of the Veteran's appeal of this issue has been obtained and the case is ready for appellate review. Accordingly, the Board will address the merits of the claim. Law and Regulations- Service Connection of PTSD Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. Service connection may 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). Generally, in order to prevail on the merits on the issue of service connection, there must be medical evidence of current disability; medical or, in certain circumstances lay, evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); Hickson v. West, 12 Vet.App. 247, 253 (1999). Service connection for PTSD requires medical evidence diagnosing the condition; 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). A diagnosis of PTSD must be established in accordance with 38 C.F.R. § 4.125(a), which provides that all psychiatric 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). A veteran prevails in a claim when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against a veteran's claim that the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet.App. 49 (1990). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the entire record must be reviewed, but each piece of evidence does not have to be discussed). The analysis in this decision focuses on the most salient and relevant evidence, and on what the evidence shows or fails to show with respect to the appealed claims. See Timberlake v. Gober, 14 Vet.App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet.App. 303 at 308 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when 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. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet.App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet.App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet.App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. Analysis-Service connection of PTSD The Veteran contends that was there was a mortar round misfire at Ft. Carson during his training in 1984 or 1985 that was in close range to him (about 10 or 15 feet away). No one was hurt or seriously injured during such incident. He alleges, however, that this was an accident that threatened serious injury or death to self and therefore is a qualifying in-service stressor for purposes of PTSD. Such stressor has been corroborated by two buddy statements submitted by the Veteran from fellow veterans who were present at the time of the incident, and VA subsequently conceded to the claimed in-service stressor. As stated above, however, to be successful in a claim of service connection for PTSD, the claimant needs medical evidence diagnosing the condition. In the instant case, the Veteran was afforded VA examinations in January and June 2010. Neither examiner rendered a diagnosis of PTSD as consistent with the applicable governing regulations and in accordance with the DSM-IV criteria, which focuses on 5 explicit axes and six separate criteria (A through F) for the diagnosis of PTSD. Specifically, the January 2010 examiner diagnosed the Veteran with sub-threshold PTSD, indicating that the Veteran's symptomatology did not rise to the level required to satisfy the criteria for a clinical diagnosis of PTSD. The examination report explained that the Veteran failed to meet the C and F criteria set forth in the DSM-IV. The C criteria requires persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness. The examiner noted that the Veteran did not report such during his examination, nor did he report any clinically significant distress or impairment in social, occupational or other important areas of functioning sufficient to satisfy the F criteria for a diagnosis of PTSD. In an attempt to give the Veteran an additional opportunity to secure a clinical diagnosis of PTSD, VA afforded him another examination in June 2010 with a different examiner. Although the initial purpose of this examination was to obtain a diagnosis, it again only provided a sub-threshold PTSD diagnosis due to the fact that the Veteran's symptomatology did not meet the C and F criteria of a PTSD diagnosis in accordance with the DSM-IV. Specifically, this examiner found that the Veteran made no efforts to avoid thoughts, images, feelings, places, situations or people associated with the trauma, there was no indication of estrangement from others, there was no sense of a foreshortened future, and there were no signs of diminished activities or restrict range of affects. Furthermore, the June 2010 examiner found that the Veteran did not meet the F criteria, which again requires clinically significant distress or impairment in social, occupational or other important areas of functioning. In fact, during the examination, the Veteran reported that he worked for an electric business for about one year and a sign company for three years prior to his current employment of six months with another company. At best, the June 2010 examination confirmed the diagnosis of the January 2010 opinion- sub-threshold PTSD. In support of his claim, the Veteran offers VA treatment records which show diagnoses and treatment for PTSD, and numerous personal lay statements recounting his military experiences which he believes are responsible for his PTSD symptoms. Although the treatment notes dated from 2007 to 2010 indeed show diagnoses of PTSD and ongoing treatment, they each lack specificity and detail when compared against the VA examinations. Specifically, they fail to adequately address and discuss the enumerated criteria, A through F, found in the DSM-IV as required for a clinical diagnosis of PTSD for service connection purposes. Therefore, it is uncertain whether or not these criteria were even considered when the assessments were conducted during treatment visits. Furthermore, the treatment records provide indication that consideration was afforded to stressors other than the stressors conceded for VA service connection purposes in rendering the diagnoses found in such records. For example, a November 2007 treatment record indicated that the Veteran had been physically assaulted with a weapon, had a life threatening illness or injury, and experienced the sudden unexpected death of someone close to him. With all of the aforementioned unclear factors taken into consideration, at best, the treatment records provide information and clarification regarding the treatment regime that the Veteran has underwent within the last few years. Therefore, the Board finds that any indication or reference to PTSD in the Veteran's treatment notes are strictly for treatment purposes and have no bearing on a whether or not a clinical diagnosis exists for service connection purposes under 38 C.F.R. § 3.304(f). As for the Veteran's lay statements, although he has contended that he experiences PTSD, he is not, as a layperson, competent to give a medical opinion on diagnosis, etiology, or aggravation of a medical condition. The Board has the authority to discount the weight and probative value of evidence in light of its inherent characteristics and its relationship to other items of evidence. See Layno v. Brown, 6 Vet. App. 465, 471 (1994) (finding that competent evidence is limited to that which the witness has actually observed, and is within the realm of his personal knowledge); See also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In weighing the competent evidence of record, the Board notes that both VA examinations were based upon a review of the Veteran's claims file, including the 2007-2010 treatment records, and a thorough examination of the Veteran's mental state. Additionally, the most recent VA examination performed in June 2010 was conducted specifically to determine an existence of PTSD in accordance with the DSM-IV and specific to the Veteran's confirmed stressors. Unfortunately, the examination revealed that the Veteran did not meet the required criteria for the examiner to render a clinical diagnosis of PTSD. Assuming arguendo, that the treatment based diagnoses of PTSD indeed meet the DSM-IV criteria, the VA examination reports are far more thorough and detailed than the treatment records. They offer reasoned discussions regarding application of the facts, including specifically conceded stressors, to the DSM-IV diagnostic criteria. Finally, the VA examinations also individually addressed each criteria lettered A through F found in the DSM-IV for a diagnosis of PTSD and explained whether or not the Veteran's current symptoms satisfied each criteria and why. As explained above, the most persuasive and competent evidence of record does not reflect that the Veteran has a clinical diagnosis of PTSD in accordance with the criteria listed in the DSM-IV. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)); see also Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (the probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion he reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board). There is no evidence within the claims file of any such diagnosis of PTSD in accordance with the DSM-IV criteria during the appellate period. As a consequence, the claim for service connection for PTSD therefore fails on the basis that all three elements for such a showing under 38 C.F.R. § 3.304(f), have not been met. The preponderance of the evidence is against the claim and the doctrine of reasonable doubt is not for application. See 38 U.S.C.A.§ 5107(b). The claim for service connection for PTSD must be denied. ORDER Entitlement to service connection for Post-Traumatic Stress Disorder (PTSD) is denied. REMAND Remand for the claim of service connection for an acquired psychiatric disorder other than PTSD is required for more development in order to comply with VA's duty to assist the Veteran in substantiating his claim. 38 U.S.C.A. § 5103, 5103A; 38 C.F.R. § 3.159. In the instant case, the Board has expanded the Veteran's claim to include service connection for an acquired psychiatric disability in efforts to account for multiple diagnoses that have been rendered throughout the appellate period. Review of the evidence of record reveals that diagnoses, other than PTSD, have been indicated. Specifically, VA treatment records from March, April, and May of 2010 show a diagnosis of social phobia. Furthermore, the June 2010 VA examination indicates a diagnosis of social phobia and depressive disorder by history. The examination report offered no medical opinion addressing the etiology of such diagnoses. Once the Secretary undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, he must provide an adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A medical opinion will be considered adequate when it is based upon consideration of the Veteran's prior medical history and examinations and provides a sufficiently detailed description of the disability so that the Board's "evaluation of the claimed disability will be a fully informed one." Id. (internal quotation marks omitted); Green v. Derwinski, 1 Vet. App. 121. 124 (1991). Although the most recent June 2010 VA examination rendered diagnoses of social phobia and depressive disorder by history, which suggests the possibility that the Veteran does not currently carry such diagnoses, given the indication in multiple VA treatment records of the presence of the diagnoses during the pendency of this claim, a clarifying medical opinion is necessary since service connection could be establish for any disability present during the appellant period even if it resolves itself. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that the requirement that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim, even though the disability subsequently resolves); see also Romanowsky v. Shinseki, __ Vet. App. __, May 9, 2013 (NO. 11-3272). Accordingly, the case is REMANDED for the following action: 1. Provide the claims file to Dr. M, the June 2010 VA examiner, for the purpose of reviewing the file and clarifying whether the Veteran ever had an acquired psychiatric disability, other than PTSD, to include social phobia and depressive disorder during the pendency of the claim. If so, the Dr. M should provide an adequate opinion as to whether such diagnoses are presently or were historically at least as likely as not (50 percent probability or greater) caused or aggravated by his military service. If the examiner believes that such an opinion cannot be made without an additional examination of the Veteran, then such an examination should be scheduled. A full and complete rationale for any opinion expressed is required. The examiner must address the allegations in the lay evidence of record in light of the fact that lay testimony can be sufficient to establish a nexus. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given the medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). Jones v. Shinseki, 23 Vet. App. 382 (2010). 2. Review the claims file to ensure that all of the foregoing requested development is completed, and arrange for any additional development indicated. Then re-adjudicate the claim on appeal. If the benefit sought remains denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs