Citation Nr: 1335607 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 08-32 841 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARINGS ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD William J. Jefferson III, Counsel INTRODUCTION The Veteran served on active duty from March 1968 to December 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In April 2009, a personal hearing was held before a decision review officer (DRO) at the RO. Also, In March 2010, the Veteran was afforded a videoconference hearing at the RO, held before the undersigned Veterans Law Judge. During these hearings, the DRO and the undersigned identified the issues on appeal, and noted what pertinent evidence was outstanding and what evidence might assist in substantiating the claims. Additionally, the Veteran through his testimony, with the assistance of his representative, demonstrated actual knowledge of the elements necessary to substantiate the claims. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). Copies of the hearing transcripts have been associated with the record. The Veteran's claim was remanded by the Board in June 2010 for additional development. In August 2010, the RO granted the Veteran's previously appealed claim for service connection for an eye disorder, so that issue is no longer on appeal. In a November 2011 decision, the Board denied entitlement to service connection for a psychiatric disorder. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a June 2012 Order, the Court remanded the issue on appeal for additional development. The Board remanded the claim in September 2012 in compliance with instructions mentioned in the Joint Motion from the parties. In April 2013, the Board again remanded the claim to the RO via the Appeals Management Center (AMC) for additional development. FINDINGS OF FACT The most probative competent and credible evidence demonstrates that the Veteran does not have PTSD or any other psychiatric disorder. CONCLUSION OF LAW An acquired psychiatric disorder, to include PTSD, was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013) REASONS AND BASES FOR FINDING AND CONCLUSION The Duties to Notify and Assist The Veterans Claims Assistance Act (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was signed into law in November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107. To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate the claim, including apprising him of his and VA's respective responsibilities in obtaining this supporting evidence. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining this evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Ideally, VCAA notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). If, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary VCAA notice and then going back and readjudicating the claim - such as in a statement of the case (SOC) or supplemental statement of the case (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In this claim, a notice letter was sent by the RO to the Veteran in January2007, prior to initially adjudicating the claim in August 2007, which also provided the general criteria for assigning disability ratings and effective dates. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). In the August 2008 SOC, and subsequent SSOC's beginning in September 2009 with the last one in June 2013, the claim was appropriately readjudicated by the RO. See again Mayfield IV and Prickett, supra. VA also fulfilled its duty to assist the Veteran with this claim by obtaining all potentially relevant evidence, which is obtainable, and therefore appellate review may proceed without prejudicing him. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; see also Bernard v. Brown, 4 Vet. App. 384 (1993). To this end, the RO and AMC obtained the Veteran's STRs and VA and private treatment records. Also, additional pages from a Merchant Mariner physical examination report, were obtained. The record included page 4 of the report. VA personnel were able to obtain page 3 which shows medical information not relevant to the claim. The remaining additional pages (1 & 2) were obtained through the internet by VA personnel which show they are limited to instructions necessary to complete the report and a privacy statement. The unavailability of those missing pages for the Merchant Marine examination report was the subject of the June 2012 Joint Motion from the parties, and a September 2012 Board remand. In addition, concerning the duty to assist, it is noted that VA medical examinations were arranged in August 2009, June 2010, January 2011, and most recently in April 2013. These examination reports provide sufficient medical evidence for deciding this claim as they address the salient questions of the whether the Veteran has a current psychiatric disorder and, if so, whether it is related to his military service. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once VA undertakes the effort to provide an examination, it must provide an adequate one). In the April 2013 examination, the designated VA examiner provided the requested medical opinion concluding that the Veteran does not have the claimed condition, so the opinion is responsive to this important threshold preliminary question; there is no current disability to relate or attribute to his military service. See Stegall v. West, 11 Vet. App. 268 (1998) (where the remand orders of the Board are not complied with, the Board itself commits error as a matter of law when it fails to ensure compliance, and further remand will be mandated). Thus, as there is no indication or allegation that other relevant evidence remains outstanding, the Board finds that the duty to assist has been met. 38 U.S.C.A. § 5103A. Service Connection Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304. It has been held that service connection requires: (1) competent and credible evidence confirming the Veteran has the claimed disability or, at the very least, showing he has at some point since the filing of his claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) competent and credible evidence of a causal relationship, nexus or linkage between the current disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002). Establishing entitlement to service connection for PTSD, specifically, requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor actually occurred. 38 C.F.R. § 3.304(f). Section 4.125(a) requires the diagnosis to conform to the Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). With respect to the stressor element, there must be credible evidence supporting the Veteran's assertion that the stressful event occurred. A medical opinion diagnosing PTSD generally does not suffice to verify the occurrence of the claimed in-service stressors. Cohen v. Brown, 10 Vet. App. 128, 142 (1997). That is, this requirement usually cannot be established by after-the-fact medical nexus evidence. Moreau v. Brown, 9 Vet. App. 389, 395-96 (1996). Exceptions to this general rule are when the claimed stressors occurred during combat (38 C.F.R. § 3.304(f)(2) ), as a result of "fear of hostile military or terrorist activity" (new subpart (f)(3)), while being detained as a prisoner of war (POW) (subpart (f)(4)), and when due to personal or sexual assault (subpart (f)(5)). Factual Background The Veteran asserts that he has PTSD that is the result of his service in Thailand, including when his service duties required that he assist in night missions to pickup downed pilots in enemy territory, and witnessing killings as a mechanic working in Laos, as well as air crashes, including one at an airbase where he was working in April 1970. The Veteran's service treatment records (STRs), including his separation physical examination report, are negative for any complaints, diagnoses or treatment for a psychiatric disorder. Service personnel and other records confirm that the Veteran was assigned to the 7th Airborne Command Control Squadron, stationed at Udorn Airfield, Thailand, and that an aircraft crashed into the base housing area on April 10, 1970. In August 2008, VA treatment records report the Veteran's complaint of "issues" triggered by the terrorist attacks on September 11, 2001. He had been taking antidepressant medication since late fall 2001. A medical history of PTSD was reported. The provisional diagnosis was adjustment disorder. Subsequent treatment records revealed diagnoses of adjustment disorder with anxiety. It was reported that the Veteran had been provided an explanation of the reasons why the diagnostic criteria for PTSD were not met. At a VA examination in August 2009 the Veteran complained of anxiety, depression, anger, nightmares, and avoidance of crowds. The Veteran reported his condition began in Southeast Asia while in Thailand when he worked on aircraft and he was concerned with fires from hydraulic leaks, and the death of two friends who died in a fire. He also stated that he was present when persons were killed after flying to a local village during service in Southeast Asia. The examiner reported that the criteria for an Axis I diagnosis were not met. There were objective findings upon examination including depression or depressed mood under control with medication and mild anxiety, but that the symptoms reported did not meet all DSM-IV criteria for a diagnosis of PTSD. In September 2009, the Veteran provided a copy of correspondence from the United States Coast Guard noting that he had been granted a medical waiver for his Merchant Mariner's credential application. As well he provided page 4, of a 4 page, June 2009 Merchant Mariner physical examination report. The remaining pages, 1-3, have been obtained and researched on the internet by VA personnel and they do not relate any relevant evidence. The physical examination report signed by a VA physician noted a psychiatric disorder, PTSD, doing well, seen by a counselor (2000); and depression, well controlled (2000). Correspondence from a VA clinical psychologist dated in February 2010 noted the Veteran was seen at the primary care psychology clinic from August 2009 to February 2010. Adjustment disorder with anxiety was diagnosed. At a June 2010 VA examination, a psychologist reported that the Veteran had PTSD symptoms that occurred on a somewhat transient basis, but which did not significantly impair functioning. The examiner found the DSM-IV criteria for a diagnosis of PTSD had not been met and that an Axis I diagnosis for any psychiatric disorder was not warranted. It was further noted that there was an insufficient number of symptoms and a lack of impairment of function such that the criteria for a diagnosis of PTSD were not met. The examiner stated that despite the Veteran's nightmares and memories of Southeast Asia and his emotional reactions triggered by the current conflict in the Middle East his functioning in social and occupational realms was not impaired and did not warrant an Axis I diagnosis. A January 2011 examination report from another VA psychologist noted the Veteran had PTSD symptoms including recurrent and intrusive distressing recollections of traumatic events, efforts to avoid thoughts, feelings, or conversations associated with traumatic events, and difficulty falling or staying asleep. The examiner, found the PSTD symptoms were transient in nature and did not appear to be severe enough to interfere with daily activities. It was noted that the DSM-IV criteria for a diagnosis of PTSD were not met and that an Axis I diagnosis for a mood disorder was not warranted. The examiner stated that it was "possible that the Veteran did meet criteria for Acute stress disorder at one point in time," but that he currently denied significant symptoms that interfered with daily functioning. It was reiterated that the diagnostic criteria for PTSD or any other anxiety disorder were not met at the time. The examiner also noted, in essence, that it was unclear from a review of the chart upon what basis the Veteran had been previously provided diagnoses of adjustment disorder with anxiety and that a specific life event with adjustment issues was not shown. The examiner further found that the Veteran's mental disorder symptoms were controlled by continuous medication and that his mental disorder symptoms were not severe enough to interfere with occupational and social functioning. In a February 2011 addendum report the examiner noted that all available records had been reviewed and that the Veteran did not meet the criteria for a diagnosis of any mental health disorder. VA treatment records in the Virtual File from 2007 to 2012, show that the Veteran's active problems were listed as depressive disorder, NEC; and adjustment disorder with anxiety. In health evaluations through 2012 it was reported that the Veteran's depression and PTSD screens were negative, with scores of zero (0). In April 2013, following a Board remand request, a VA PTSD examination was conducted by a psychologist. The examiner indicated that the claims folder was reviewed. It was reported that the Veteran had been started on antidepressant medication in 2001 due to mood issues and irritability following 9/11 events. He had been stable since then. It was noted that there had been diagnoses of depressive disorder NEC secondary to his being prescribed antidepressant medication. On preventative health screenings, from 2007 through 2012 he had denied depression and current PTSD symptoms. The Veteran reported his service events and experiences, including a plane crash and being present when persons were killed Laos. The examiner concluded that the Veteran's symptoms did not meet the diagnostic criteria for PTSD under DSM-IV. It was also reported that the Veteran did not have a mental disorder that conforms to DSM-IV criteria. It was stated that there was no mental disorder diagnosis. It was stated that the Veteran recounted traumatic experiences during his service and while he endorsed some symptoms of his military experience and some irritability, he did not meet full DSM-IV criteria for a diagnosis of PTSD or any other DSM-IV diagnosis. The examiner stated that the Veteran likely was first diagnosed with depressive disorder and prescribed antidepressant medication in 2001 by a primary care physician versus a mental health professional. It was stated that the Veteran's primary care physician more than likely relied on a self report rather than performing a formal assessment utilizing DSM-IV criteria. While the Veteran had participated in four psychological evaluations by licensed psychologists, in all four examinations he was found not to have a current diagnosis. His psychologist providing individual therapy had assigned a diagnosis of adjustment disorder reflecting the phase of life issues the Veteran was presented with. It was stated that considering the conflicting evidence it is best resolved by noting the preponderance of clinical assessment fails to support a diagnosis of PTSD or any other DSM-IV diagnosis at the present time or during previous evaluations. In the rationale the VA examiner indicated that the opinion was based not only on the Veteran's self report and presentation during the interview, but on his CPRS (VA) records, service records and C (claims) file. It was noted that the Veteran had introduced evidence pertaining to his Merchant Mariners license as new evidence to support his assertions. It was pointed out though his medical waiver was filled out by his VA primary care physician and simply listed his current medications which were already recorded. He was granted his license by the governing body, indicating that there were no psychiatric issues barring him from serving on a merchant vessel. He has completed four evaluations with similar outcomes, and his treatment provider has not reported findings of PTSD. A few symptoms of PTSD were considered minimal, and his thoughts about the military did not necessarily cause him distress. It was explained that most veterans from the Vietnam Theater have regular thoughts and recollections about that time near retirement years which are appropriate to that stage of life unless they cause distress or dysfunction. While it is difficult to say if the Veteran had more severe PTSD symptoms earlier in life, particularly when he returned from Thailand, at present, although he does endorse some PTSD symptoms, he does not currently meet DSM-IV criteria for a formal diagnosis of PTSD. Analysis The Board has reviewed the evidentiary data and concludes that an acquired psychiatric disorder, to include PTSD is not currently shown and therefore not related to the Veteran's military service. The Veteran's STR's do not show any treatment for or a diagnosis of a psychiatric disorder. In terms of his reported service stressors, there is confirmation that the Veteran was at Udorn Airfield, Thailand, on April 10, 1970 when an aircraft crashed into the base housing area. However, further discussion of stressors is not necessary in relation to the PTSD aspect of the claim because the evidence shows that the Veteran does not have PTSD and has not had PTSD at any point during the claims process. Proof that the Veteran has this claimed disability is a fundamental requirement of this claim for service connection because, without this minimum level of proof, there can be no valid claim because there is no disability to causally relate or attribute to his military service. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (indicating service connection presupposes a current diagnosis of the condition claimed). It is noted that the records only reflect only provisional reports of PTSD and depression. As pointed out by a VA examiner in April 2013, these reports of PTSD in the records are likely relied on by self report and not a formal assessment utilizing DSM-IV criteria. The examiner, who is a VA psychologist, reviewed the claims file, noted an accurate military and medical history, interviewed the Veteran, and conducted a mental status examination. It was opined that the Veteran did not meet the diagnostic criteria for PTSD or a mental disorder under DSM-IV. And that consistently past VA mental health assessments had not shown a current diagnosis. While he had been given a diagnosis of adjustment disorder this was only reflective of his current phase of life issues. Further, while a VA primary physician had reported PTSD and depression dating back to 2000, in a Merchant Marine physical evaluation, there were no psychiatric issues barring the Veteran's participating in the Merchant Marine service. The Board must account for the evidence it finds persuasive or unpersuasive, and provide reasons for rejecting material evidence favorable to the claim. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). The Board attaches the most significant probative value to the April 2013 VA psychologist's opinion as it is well reasoned, very detailed, consistent with other evidence of record, and included an access to the accurate background of the Veteran. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). It cannot be overemphasized here that the VA psychologist's assessment of no current psychological disability under DSM-IV, is consistent with other VA psychological assessments in the recent past. In McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the Court held 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. The evidence here clearly shows that the Veteran did not meet the diagnostic criteria for a diagnosis of PTSD or any other psychological disorder since he filed his claim for service connection in November 2006.Therefore, in addition to PTSD, service connection is therefore also not warranted for any other psychiatric disorder, because the evidence does not even suggest that he has (or has had) such a disorder that had its onset during, or is otherwise etiologically related to his military service. For the foregoing reasons, the Board finds that the claim of service connection for an acquired psychiatric disorder, to include PTSD must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim of service connection, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for an acquired psychiatric disorder, to include PTSD is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs