Citation Nr: 1334570 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 11-04 715 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD E. Woodward Deutsch, Counsel INTRODUCTION The Veteran served on active duty from November 1982 to November 1986. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In September 2012, the Veteran testified before the undersigned at a Board hearing conducted at the RO. A transcript (Tr.) of the hearing has been associated with the claims file. Following the proceeding, the Veteran submitted additional evidence in support of his claim, accompanied by a waiver of initial review by the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran does not have PTSD. 2. The Veteran's current acquired psychiatric disorders, diagnosed as anxiety disorder, not otherwise specified (NOS), with PTSD features, and depressive disorder, NOS, did not manifest in service and are unrelated to any aspect of his active duty. CONCLUSIONS OF LAW 1. The criteria for service connection for PTSD have not been met. 38 U.S.C.A. §§ 1112, 1113, 1131, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.125 (2013). 2. The criteria for service connection for an acquired psychiatric disorder other than PTSD have not been met. 38 U.S.C.A. §§ 1112, 1113, 1131, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 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). Proper VCAA notice must inform the claimant 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 claimant is expected to provide. 38 C.F.R. § 3.159(b)(1) (2013). VCAA notice should be provided to a claimant before the initial unfavorable AOJ decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The VCAA notice requirements apply to all five elements of a service-connection claim: Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability. See Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006). In this case, VCAA notice was provided through a letter issued in December 2009, prior to the initial rating decision. The letter specifically advised the Veteran of the evidence needed to substantiate a claim for service connection for PTSD, as well as his responsibilities, and those of VA, for obtaining such evidence. In addition, that letter described in detail how VA assigns a disability rating and an effective date following the grant of service connection. As such, that letter not only comported with the Pelegrini notice provisions but also satisfied the heightened VCAA requirements set forth in Dingess. The above notice letter predated and, thus, did not address the revised regulatory standard governing service connection for PTSD based on hostile military or terrorist activity. See 38 C.F.R. § 3.304(f)(3) (effective July 13, 2010); 75 Fed. Reg. 39843 (July 13, 2010). Nor did that letter address the requirements for establishing service connection for other acquired psychiatric disorders, which may be reasonably encompassed within a claim of service connection for PTSD. See Clemons v. Shinseki, 23 Vet. App. 1, 6-7 (2009) (finding that the scope of a claim includes any disorder that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and other information of record). Nevertheless, the Veteran and his representative have since demonstrated actual knowledge of the relevant notice provisions. Indeed, the parties have expressly referenced the amended PTSD regulation while arguing that the Veteran's alleged in-service stressor is predicated on a fear of hostile military activity for which no objective verification is needed. See Board Hearing Tr. at 10. Moreover, by arguing that the Veteran is also entitled to service connection for one or more other acquired psychiatric disorders, the parties have demonstrated a familiarity with the tenets of Clemons. These displays of actual knowledge, viewed in tandem with the additional notice provided in the December 2010 Statement of the Case and the July 2011 and March 2012 Supplemental Statements of the Case, are sufficient to cure any prejudice arising from the December 2009 VCAA letter. Thus, the Board finds that VA has fully met its duty to notify the Veteran under 38 C.F.R. § 3.159(b). The Board also finds that VA has satisfied its duty to assist the Veteran pursuant to 38 C.F.R. § 3.159(c). The AOJ has obtained copies of the Veteran's service treatment and personnel records and his pertinent VA medical records. Significantly, the Veteran has not identified, and his claims file has not otherwise shown, the existence of any pertinent records that have yet to be obtained. In addition to undertaking the above records development, the AOJ has assisted the Veteran by affording him an April 2011 VA examination in support of his appeal. The Veteran has since argued that the April 2011 VA examiner's findings are inadequate because she failed to afford proper weight to his alleged PTSD stressors. See Board Hearing Tr. at 10. Notwithstanding these contentions, the record reflects that the April 2011 VA examiner did, in fact, address Veteran's alleged in-service stressors, which included serving on a Navy warship (the U.S.S. Bainbridge) during the 1986 United States bombing campaign against Libya and thereafter recovering the "body parts of the pilots who were shot down in the water." See April 2011 VA Examination Report at 4. Moreover, there is nothing in the April 2011 examiner's report that indicates that she discounted any of the Veteran's alleged stressors or otherwise neglected to follow VA examination protocols. Thus, in the absence of clear evidence to the contrary, the Board presumes that the VA examiner properly discharged her official duties. See Jennings v. Mansfield, 509 F.3d 1362, 1367 (Fed. Cir. 2007); (discussing the presumption of regularity); Ashley v. Derwinski, 2 Vet. App. 62, 64 (1992); accord United States v. Chemical Foundation, 272 U.S. 1, 14-15 (1926); see also Rizzo v. Shinseki, 580 F.3d 1288, 1292 (Fed. Cir. 2009) (confirming that the presumption of regularity does not only apply to procedural matters, but also applies to the competency of medical professionals); Clarke v. Nicholson, 21 Vet. App. 130, 133 (2007) (holding that a challenger of the presumption must "produc[e] clear evidence that VA did not follow its regular . . . practices or that its practices were not regular"). As such, the Board concludes that the April 2011 examiner's findings are adequate for rating purposes and that it is therefore unnecessary to remand for an additional VA examination. See 38 C.F.R. § 4.2 (2013); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Similarly, it is unnecessary to remand for an additional hearing as the Veteran has already had the opportunity to testify before the undersigned in support of this appeal. See 38 C.F.R. § 20.700(a). The transcript of the Veteran's September 2012 hearing reflects that the undersigned set forth the issue on appeal at the start of the proceeding, then focused on the elements necessary to substantiate the claim and sought to identify any further development that was required. See Board Hearing Tr. at 2, 16-20. These actions satisfied the duties a Veterans Law Judge has to explain fully the issue and to suggest the submission of evidence that may have been overlooked. See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010) (holding that the provisions of 38 C.F.R. § 3.103(c)(2) apply to a hearing before the Board). Notably, the Veteran has not alleged, and the evidence has not otherwise shown, that the undersigned failed to comply with 38 C.F.R. § 3.103(c)(2) or committed other prejudicial error, either by failing to fully explain the issue on appeal or by neglecting to suggest the submission of relevant evidence that may have been overlooked. Moreover, there is no indication that the Veteran was otherwise denied due process during his Board hearing. In light of the foregoing, the Board finds that VA's duties to notify and assist have been satisfied in this case and, thus, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). II. Merits of the Claim for Service Connection The Veteran contends that he suffers from PTSD and related acquired psychiatric disorders that had their onset during his tour of duty aboard the U.S.S. Bainbridge and therefore warrant direct service connection. Service connection may be granted for a disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2013). Establishing entitlement on a direct basis generally requires evidence showing: (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. See Hickson v. West, 12 Vet. App. 247, 253 (1999). In addition to the above criteria, the requirements for service connection for PTSD include: (1) a medical diagnosis in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f) (2013). In this case, the evidence of record does not establish that the Veteran has a diagnosis of PTSD. 38 C.F.R. § 4.125(a) (2013). Although his VA treatment records reflect that he has screened positive for the disorder, his symptoms have not been found to comport with a full multi-axial diagnosis under the Diagnostic and Statistical Manual of Mental Disorders (DSM IV). See generally 38 C.F.R. § 4.125 (2013). To the contrary, a VA psychologist who examined the Veteran in April 2011 has opined that, despite the alleged in-service stressors detailed above, he has not demonstrated "intense fear, helplessness, or horror," nor shown that he "experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or injury, or a threat to the physical integrity of self or others" sufficient to meet the threshold DSM-IV criterion for PTSD. See April 6, 2011, VA Examination Report at 11; see also April 25, 2011, E-mail Addendum. Consequently, while the VA examiner has diagnosed the Veteran with both anxiety disorder, NOS, with PTSD features, and depressive disorder, NOS, she has expressly concluded that a specific diagnosis of PTSD is not warranted in this case. Id. The VA examiner's diagnostic findings are highly probative as they are based on a clinical examination and a review of the record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-03 (2008) (applying the Federal Rules of Evidence to find that the probative value of a medical opinion is dependent upon whether the opining clinician was fully informed of the pertinent factual premises, i.e., history, of the case). The evidentiary weight of those findings is further enhanced by the VA examiner's status as a licensed psychologist. See Black v. Brown, 10 Vet. App. 279, 284 (1997) (in determining the weight assigned to this evidence, the Board also looks at factors such as the health care provider's knowledge and skill in analyzing the medical data). Moreover, the Board has no independent basis to question the VA examiner's findings absent competent medical evidence to the contrary. No such evidence has been presented here. Indeed, while the Veteran has attempted to rebut the examiner's opinion with an October 2012 VA Mental Health Diagnostic Study Note, the findings contained therein only show that PTSD is "suggested" in his case and do not establish that he actually has the disorder. Clearly, the Veteran believes that he has PTSD, and his opinion is shared by his mother and girlfriend, as evidenced by their written statements. See August 2011 Statement from "B.W."; April 2011, August 2011, and March 2012 Statements from "T.J." Each of these laypersons is competent to opine on matters that lie within the realm of common medical knowledge. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Such matters, however, do not include the diagnosis of PTSD, which requires clinical expertise. See Jandreau v Nicholson, 492 F.3d 1372, 1377, n. 4 (Fed. Cir. 2007) (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"). Accordingly, the Board finds that the evidence submitted by the Veteran, including his own assertions and those of the other lay witnesses, are insufficient to establish that he has PTSD when the examining VA psychologist has concluded otherwise. It follows that the threshold element for service connection for PTSD has not been met and the Board must instead consider whether to grant VA benefits for any other acquired psychiatric disorders under the three-part Hickson test. Turning to the initial Hickson element, the April 2011 VA examiner has determined that the Veteran meets the DSM-IV criteria for anxiety and depressive disorders, and his VA treatment records confirm that such diagnoses are proper. While that evidence is enough to satisfy the threshold requirement for service connection, however, the remaining Hickson elements (in-service incurrence and nexus) have not been sufficiently substantiated. With respect to the second Hickson element, the Veteran's service treatment records are silent for any complaints or clinical findings of anxiety, depression, or related mental health problems. Such a lack of contemporaneous in-service evidence, however, is not necessarily fatal to a claim for direct service connection. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). For this reason, the Board has carefully considered the Veteran's post-service account of developing anxiety and related symptoms while assigned to Bainbridge during a 1986 missile strike against Libya (Operation Eldorado). See Board Hearing Tr. at 12. In this regard, however, the Board has reason to question the Veteran's credibility, as his testimony is inconsistent with the other evidence of record. Such evidence includes documentation from an official United States Navy website, which the Veteran has submitted in connection with his appeal and which indicates, in pertinent part: [In early 1986], owing to several recent terrorist incidents in Europe, President Ronald Reagan directed the Joint Chiefs of Staff to look into military operations against Libya. Although tapped for contingency operations with America [another Navy warship], Bainbridge did not sail when that battle group departed Norfolk on 10 March. Instead, the guided missile cruiser resumed her West Indies patrol by sailing south from Norfolk on 11 March. See Dictionary of American Naval Fighting Ships (pertaining to Bainbridge). The above documentation further indicates that, while Bainbridge took part in a later military strike against Libya, this operation did not take place until January 1989, after the Veteran had left the Navy. Id. Thus, this documentation, although submitted in support of the Veteran's claim, ultimately undermines his contentions. Significantly, there is no other evidence of record that supports the Veteran's account of serving aboard Bainbridge in support of Operation Eldorado (other than the Veteran's own statements, which the Board finds lack credibility due their inconsistency with other evidence of record, as outlined above). Conversely, the record does show that the Veteran was assigned to Bainbridge during a period in which it "searched for a downed Grumman A-6 'Intruder,' recovering the bodies of the aircrewman and some debris" while sailing towards Toulon, France. Id. However, the Veteran has not alleged, and the record has not otherwise shown, that this specific event caused or otherwise contributed to his anxiety or depression. Even if the Board were to accept that the Veteran incurred psychiatric trauma during his service on Bainbridge, the third and final Hickson element would not be met absent probative evidence linking such in-service trauma to one or more current acquired psychiatric disorders. No such evidence of an in-service nexus has been presented here. Instead, the April 2011 VA examiner has attributed the Veteran's anxiety and depression to a series of post-service civilian stressors, including his history of substance abuse, incarceration, familial discord, unemployment, homelessness, and, most notably, "being stabbed five times by someone he knew" after he left the military. See April 6, 2011 VA Examination Report at 5-9, 10-11; see also April 25, 2011, E-mail Addendum. As discussed, the April 2011 VA examiner's opinion was based upon a thorough clinical examination and evidentiary review and, thus, is considered probative. See Nieves-Rodriguez, 22 Vet. App. at 302-03. Moreover, just as that psychologist's credentials lend further weight to her finding that the Veteran does not have PTSD, they likewise bolster the value of her etiological opinion regarding his anxiety and depression. See Black, 10 Vet. App. at 284. Conversely, the Veteran himself has not been shown to possess any clinical training and, thus, lacks the requisite expertise to render such an opinion. See Jandreau, 492 F.3d at 1377. There is no other evidence of record that relates the Veteran's anxiety or depression to his active military service. In this regard, the Board recognizes that he has attested to ongoing mental health problems since leaving the Navy. See Board Hearing at 12. However, even assuming that his testimony is true, such a continuity of symptomatology is no longer sufficient to establish in-service nexus with respect to non-psychotic acquired psychiatric disorders, which lie beyond the scope of 38 C.F.R. § 3.303(b). See Walker v. Shinseki, 708 F.3d 1331, 1337-1338 (Fed. Cir. 2013). Therefore, absent any complaint or clinical finding of psychosis, the final Hickson requirement has not been met with respect to the Veteran's claim. In summary, the Board finds that the Veteran does not meet the diagnostic criteria for PTSD, and that his only currently diagnosed acquired psychiatric disorders (anxiety and depression) are unrelated to his active military service. Thus, while mindful of the benefit-of-the-doubt doctrine, the Board finds that rule is not for application and that the benefits sought on appeal must accordingly be denied. See 38 U.S.C.A. § 5107 (West 2002) 38 C.F.R. § 4.3 (2013). (CONTINUED ON NEXT PAGE) ORDER Service connection for an acquired psychiatric disorder, to include PTSD, is denied. ____________________________________________ DONNIE R. HACHEY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs