Citation Nr: 1334672 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 09-16 624 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for an acquired psychiatric disability other than PTSD, to include a mood disorder manifested by depression with anxiety, to include as secondary to a service-connected left shoulder disability. REPRESENTATION Veteran represented by: J. Michael Woods, Attorney ATTORNEY FOR THE BOARD S. Dale, Counsel INTRODUCTION The Veteran served on active duty from July 1979 to May 1983. These matters come to the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In October 2010, the Veteran did not report for the hearing he had requested before a Veterans' Law Judge traveling to the RO and no good cause has been shown. Therefore, his hearing request is deemed withdrawn. 38 C.F.R. § 20.704(d) (2012). In September 2012, the Board remanded the Veteran's claims for further development. As will be discussed below, the Board's September 2012 remand directives have been substantially completed, and the Veteran's claims have been returned to the Board. Characterization of the issues on appeal The Veteran initially filed a claim to establish service connection for PTSD, depression and anxiety. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims (the Court) held that, in determining the scope of a claim, the Board must consider the Veteran's description of the claim; symptoms described; and the information submitted or developed in support of the claim. Id. at 5. Although the Board acknowledges the Court's holding in Clemons, as will be discussed below, there is no valid PTSD diagnosis of record, and VA's laws and regulations concerning claims to establish service connection for PTSD are wholly separate and distinct from those pertaining to service connection claims for other psychiatric disabilities. As such, the Board has bifurcated the Veteran's original claim to parse out the issue of entitlement to service connection for PTSD and expanded the remaining issue as to include all other acquired psychiatric disabilities which have been diagnosed, per Clemons. The issues are as stated on the title page. FINDINGS OF FACT 1. The Veteran does not have PTSD. 2. The Veteran's acquired psychiatric disability other than PTSD, diagnosed as a mood disorder manifested by depression with anxiety, is caused or aggravated by his service-connected left shoulder disability. CONCLUSIONS OF LAW 1. The criteria for service connection for PTSD are not met. 38 U.S.C.A. §§ 1131, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304 (2013). 2. The criteria for service connection for an acquired psychiatric disability other than PTSD, diagnosed as a mood disorder manifested by depression with anxiety, are met. 1131, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. § 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board grants entitlement to service connection for an acquired psychiatric disorder other than PTSD, to include mood disorder manifesting as depression with anxiety, which constitutes a complete grant of this claim. Therefore, no discussion of VA's duty to notify or assist is necessary with respect to that issue. With respect to the Veteran's claim to establish service connection for an acquired psychiatric disability other than PTSD, VA has met all statutory and regulatory notice and duty to assist provisions. See 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 (2013). An August 2007 letter satisfied the duty to notify provisions, to include notifying the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran has not been apprised, in accordance with 38 C.F.R. § 19.29, of the new PTSD provisions codified at 38 C.F.R. § 3.304(f)(3), effective July 13, 2010. However, as discussed below, the Veteran does not have PTSD; rather, his psychiatric symptoms are due to a mood disorder manifested by depression and anxiety. Since the Veteran does not have a diagnosis of PTSD, remand for notice to the Veteran of 39 C.F.R. § 3.304(f)(3) is not warranted. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran). The Veteran's service treatment records and VA medical treatment records have been obtained and associated with the record, to include updated VA treatment records as directed by the Board in the September 2012 remand. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order). Although the record includes VA treatment records dated up to September 30, 2013, only records dated prior to September 15, 2012, have been considered by the RO and VA Appeals Management Center (AMC) in adjudicating the Veteran's claim. While neither the Veteran nor his private attorney has waived original jurisdiction review of this evidence as per 38 C.F.R. § 20.1304(c), the Board finds that a remand for this undertaking is unnecessary because the evidence is not relevant. Specifically, as will be discussed below, the Veteran's PTSD claim is being denied because the evidence does not reflect a diagnosis under the diagnostic criteria for the condition as set forth in the Fourth Edition of the American Psychiatric Association 's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), and the VA treatment records dated from September 15, 2012, to September 30, 2013, are also negative for such a diagnosis. As such, a remand to allow the RO or AMC to review this evidence in the first instance would merely cause avoidable delay and would not result in any additional benefit to the Veteran. Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran). The Court has held that such remands should be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). In light of above, the Veteran is not prejudiced by the Board's adjudication of his PTSD claim at this time. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). Private treatment records from medical professionals employed by the Luther Luckett Correctional Complex have been obtained and associated with the record. The record does not reflect that the Veteran is in receipt of disability benefits from the Social Security Administration (SSA). 38 C.F.R. § 3.159 (c) (2); Golz v. Shinseki, 590 F.3d 1317, 1320-21 (Fed. Cir. 2010). As directed by the Board in the September 2012 remand, a VA opinion was obtained in connection with the Veteran's claim, and the Board concludes that this opinion is adequate for the purposes of adjudicating the Veteran's claim. Specifically, the examiner reviewed the complete record, addressed the appropriate matters affecting the Veteran's claim and provided opinions which are congruent with the other evidence of record. All offered opinions are accompanied by a complete rationale. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). As noted in the Introduction, the Veteran was provided the opportunity to present oral testimony in support of his claim, but he did not report for the scheduled hearing. Since that time, neither he nor his attorney has shown good cause for this absence or requested that the hearing be rescheduled. There is no indication in the record that any additional evidence, relevant to the issue denied in this decision, is available and not part of the record. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). All of the evidence in the Veteran's claims file has been thoroughly reviewed. 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. 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 matter denied. The Veteran should not assume that pieces of evidence, not explicitly discussed herein, have been overlooked. 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). PTSD Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (2013); 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). If the Veteran fails to demonstrate any one element, denial of service connection will result. Shedden, 381 F.3d 1163. After review of all of the evidence of record, the Board finds that the preponderance of the evidence is against the Veteran's claim because the record does not reflect a diagnosis of PTSD in accordance with the pertinent criteria, namely that detailed in the DSM-IV (criteria A-F), during the pendency of the appeal. See Brammer v. Derwinski v. West, 3 Vet. App. 223 (1992) ( in the absence of a current disability, there can be no valid claim for service connection); see also McClain v. Nicholson, 21 Vet. App. 319 (2007) (holding that service connection may be warranted if there is a disability present at any point during the claim or appeal period, even if not present at the time of adjudication). In this regard, the Veteran's incarceration and VA medical records dated from 1993 to 2009 note the Veteran's reports of a "history of PTSD" in November 2007, a positive PTSD screening in June 2009, as well as a VA medical professional's note of the Veteran's "self[-]proclaimed diagnosis of 'PTSD'" in September 2009. However, these cited instances stem from transcription of the Veteran's own assertions and do not make references to the DSM-IV, as necessary per 38 C.F.R. § 3.304. LeShore v. Brown, 8 Vet. App. 406, 409 (1995) (bare transcription of lay history, unenhanced by additional comment by the transcriber, does not become competent medical evidence merely because the transcriber is a medical professional). In sum, there are four records which render multi-axial psychiatric diagnoses pursuant to the DSM-IV, and none of these include a diagnosis of PTSD. See VA treatment records dated in June 2009 and September 2009, the October 2012 VA opinion and the August 2013 private psychiatric evaluation from Dr. Henderson-Galligan. Of these four records, only the October 2012 VA opinion addresses a possible PTSD diagnosis. After a review of the full record, the examiner opined that the Veteran did not meet criteria A, E, or F, and thus, PTSD could not be diagnosed under the DSM-IV. There is no medical evidence of record to the contrary, and it is accorded great weight. See Owens v. Brown, 7 Vet. App. 429 (1995) (it is the Board's fundamental responsibility to evaluate the probative value of all medical and lay evidence); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991) (holding that the Board must consider only independent medical evidence to support its findings rather than provide its own medical judgment). The Board is mindful of the Veteran's assertions that he has PTSD, and notes that under certain circumstances, a layperson is competent to identify a simple medical condition. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (noting, in a footnote, that sometimes a 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). As noted above, in cases to establish service connection for PTSD, there is a specific legal requirement that the diagnosis be rendered in accordance 38 C.F.R. § 4.125, that is, a diagnosis that conforms to the DSM-IV. 38 C.F.R. § 3.304(f). In other words, PTSD is not a simple medical condition that the Veteran as a lay person can perceive based on mere personal observation, that is, by visual observation or by any other of the senses. For these reasons, the Veteran as a lay person is not competent to declare that he has PTSD or to offer an opinion that PTSD is related to some incident in service, as PTSD is not a simple medical condition. Also, it has not been established that the Veteran is otherwise qualified through specialized education, training, or experience to state that he has PTSD or to offer a medical diagnosis or an opinion on medical causation. The Court has held that where the determinative issue involves a question of medical diagnosis or causation, only individuals possessing specialized medical training and knowledge are competent to render such an opinion. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. Sept. 14, 2009), citing Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Barr v. Nicholson, 21 Vet App 303 (2007) (lay testimony is competent to establish the presence of varicose veins); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis). In this case, the evidence does not reflect that the Veteran possessed a recognized degree of medical knowledge that would have rendered his opinions on medical diagnosis or causation competent. Accordingly, to the extent that the Veteran statements are offered as evidence of a diagnosis, the statements are not competent evidence and the statements necessarily are excluded as evidence in support of the claim. Where, as here, there is a question of a diagnosis, not capable of lay observation, and the claimed disability is not a simple medical condition, competent medical evidence is required to substantiate the claim. Also, where there is a question of medical causation, that is, medical evidence of an association or link between the claimed disability, first shown after service, and an injury, disease, or event in service, where a lay assertion on medical causation is not competent evidence, Grottveit v. Brown, 5 Vet. App. 91, 93 (1993), competent medical evidence is required to substantiate the claim. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis or opinion. 38 C.F.R. § 3.159. In this case, the medical evidence reflects that the Veteran does not meet the DSM-IV criteria for a diagnosis of PTSD. The preponderance of the evidence is consequently against the claim of service connection. Owens, 7 Vet. App. 429 (1995) (it is the Board's fundamental responsibility to evaluate the probative value of all medical and lay evidence). Apart from the Veteran's allegation of PTSD, there is no competent evidence of the disorder. The criteria for a grant of service connection for PTSD are consequently not met. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); (holding that if the Veteran fails to demonstrate any one of the elements for a grant of PTSD, including, medical evidence diagnosing the condition in accordance with the provisions of 38 C.F.R. § 4.125(a), denial of service connection will result). Because the evidence of record does not indicated a diagnosis of PTSD under the DSM-IV as required by the controlling regulations, the preponderance of the evidence is against his claim for entitlement to service connection. As such, the benefit of the doubt doctrine is inapplicable, and the claim must be denied. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). An acquired psychiatric disability other than PTSD The Board notes that the Veteran has asserted his claim to establish service connection for an acquired psychiatric disability other than PTSD under the theories of direct and secondary service connection. Because the Board is granting the claim under the theory of secondary service connection, the laws and regulations pertaining to direct service connection will not be discussed. In a recent submission, the Veteran, through his attorney, has asserted that his acquired psychiatric disability other than PTSD, diagnosed as a mood disorder manifested by depression with anxiety, is secondary to his service-connected left shoulder disability. Service connection may be established on a secondary basis for a disability that is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2013). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc) (additional disability resulting from aggravation of a nonservice-connected disorder by a service-connected disorder is also compensable under 38 C.F.R. § 3.310). Although the record reflects diagnoses of several acquired psychiatric disabilities during the appeal period, in the August 2013 private psychiatric examination report, Dr. Henderson-Galligan clarified that the Veteran's psychiatric symptoms are best explained by a diagnosis of a mood disorder with depression and anxiety. This diagnosis is consistent with the totality of the evidence of record, to include the October 2012 VA opinion. Also, service connection for post-operative surgical repair of a dislocated left shoulder has been in effect since May 17, 1983. In light of above, elements (1) and (2) of secondary service connection under Allen and 38 C.F.R. § 3.310 have been demonstrated. The only nexus evidence which addresses this theory of entitlement is favorable to the Veteran's claim. Specifically, after a review of the complete record and an interview with the Veteran, Dr. Henderson-Galligan stated in the August 2013 psychiatric evaluation report that the Veteran's mood disorder was secondary to chronic pain issues associated with his service-connected left shoulder disability. In stating this opinion, Dr. Henderson-Galligan cited specific evidence showing that the Veteran's psychiatric symptoms wax and wane according to the severity of pain associated with his service-connected left shoulder disability. The Board concludes that the August 2013 opinion from Dr. Henderson-Galligan is adequate for the purpose of adjudicating the Veteran's claim, and there is no evidence addressing this matter which is contrary. As such, the Board finds that there is adequate evidence of record that the Veteran's acquired psychiatric disability other than PTSD is caused or aggravated by his service-connected left shoulder disability. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). Accordingly, the Board finds that service connection for this disability should be granted. ORDER Entitlement to service connection for posttraumatic stress disorder is denied. Entitlement to service connection for an acquired psychiatric disability other than PTSD, diagnosed as a mood disorder manifested by depression with anxiety, is granted. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs