Citation Nr: 1335677 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 09-37 252A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: South Carolina Office of Veterans Affairs ATTORNEY FOR THE BOARD Rebecca Feinberg, Counsel INTRODUCTION The Veteran served on active duty from October 1967 to May 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Board remanded the claim for service connection for an acquired psychiatric disorder in December 2011, January 2013, and June 2013. The case has since returned to the Board for appellate review. As will be discussed in more detail below, the Board finds that there was compliance with all remand directives, and the Board may proceed with this decision. In addition, the Veteran requested a hearing before the Board at the RO in his October 2009 VA Form 9 (Appeal to the Board of Veterans' Appeals). The RO acknowledged the Veteran's request and informed him of the date of the scheduled hearing in a March 2011 letter, but he failed to report. Given that he did not request a timely postponement of the hearing or provide good cause, the Board deems his hearing request withdrawn pursuant to 38 C.F.R. § 20.702(d) (2012). While the Veteran submitted a written statement in September 2013 after the last adjudication of his claim in August 2013, this statement was a duplicate of a statement previously associated with the claims file. Therefore, the Board may proceed with this appeal without RO review of this evidence. This appeal was processed using the Veterans Benefits Management System paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. The Veteran's virtual VA claims file contains only duplicative evidence. FINDING OF FACT The Veteran does not have a currently diagnosed acquired psychiatric disorder that is related to his military service. CONCLUSION OF LAW An acquired psychiatric disorder, to include PTSD, was not incurred in active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty 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 and 3.326(a) (2013). Proper notice from VA must inform the claimant of any information and medical or lay 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In this case, regarding the duty to notify, the Veteran was sent a letter in February 2008 that provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. The letter also explained what type of information and evidence was needed to establish a disability rating and effective date. Therefore, with regard to the claim decided herein, notice consistent with the requirements of the VCAA was provided prior to the initial adjudication of the claim. Accordingly, no further development is required with respect to the duty to notify. In addition, VA has a duty to assist a claimant in the development of a claim. This duty includes assisting in the procurement of service treatment records, all pertinent pre- and post-service treatment records, and by providing an examination, when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished in this case, and therefore, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). In particular, the claims file contains the Veteran's service treatment and personnel records, as well as post-service reports of VA and private treatment and examinations. Moreover, the Veteran's own lay statements in support of the claim are of record. The Board has carefully reviewed these records and statements, but finds that they identify no available, pertinent evidence that remains outstanding. The Veteran was also afforded a VA examination in January 2012 to address the claim decided herein. The Board finds that the VA examination is adequate to decide the case because, as shown below, it is based upon consideration of the Veteran's pertinent history, lay assertions, and current complaints and because it is supported by a complete rationale 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)). In addition, the Board finds that there was substantial compliance with the remand directives contained in the Board's December 2011, January 2013, and June 2013 remands. Specifically, following the December 2011 Board remand, the Veteran was sent a letter in December 2011 that requested any potentially relevant evidence with regard to a psychiatric disorder. As already noted above, the Veteran was afforded a VA examination in January 2012 that was fully responsive to the Board's directives. Finally, in July 2013, the Veteran was provided with notice regarding the revised PTSD regulation codified in 38 C.F.R. § 3.304(f). Therefore, all remand directives have been completed, and the Board may proceed with this appeal. Stegall v. West, 11 Vet. App. 268 (1998). For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the appeal. 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); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Law and Analysis The Veteran contends that service connection is warranted for an acquired psychiatric disorder, to include PTSD. At the outset, the Board notes that the Veteran did not engage in combat with the enemy. Therefore, the combat provisions of 38 U.S.C.A. § 1154 (West 2002) are not applicable. In this case, the Veteran raised the claim as one for PTSD and fatigue. Nonetheless, the Board finds that the scope of the Veteran's present claim is not limited to a claim of service connection for PTSD and fatigue alone, but also encompasses a claim of service connection for any acquired psychiatric disorder. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection generally requires credible and competent 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 Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet .App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). Establishing service connection for PTSD requires (1) medical evidence diagnosing PTSD in conformance with the DSM-IV criteria; (2) a link, established by medical evidence, between a veteran's present symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor actually occurred. See 38 C.F.R. § 3.304(f); Cohen v. Brown, 10 Vet. App. 128, 139 (1997). If PTSD was diagnosed by a medical professional, VA must assume that the diagnosis meets the DSM-IV criteria relating to adequacy of the symptomatology and sufficiency of the stressor. See Cohen, 10 Vet. App. at 153. A veteran must present credible supporting evidence establishing the occurrence of a recognizable stressor during service. The evidence necessary to establish this element varies depending on whether the veteran "engaged in combat with the enemy." West v. Brown, 7 Vet. App. 70, 76 (1994). If a veteran's claimed stressor relates to an event in which he engaged in combat with the enemy, his lay testimony, alone, is sufficient to verify the claimed in-service stressor. VAOPGCPREC 12-99, p. 4 (October 18, 1999); Gaines v. West, 11 Vet. App. 353 (1998). Effective July 13, 2010, if a stressor claimed by a veteran is related to that veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that a veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of that veteran's service, a veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(3). If a claimed stressor is not related to combat or fear of hostile or military activity, a veteran's lay statements alone are not sufficient to establish the occurrence of the alleged stressor. Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). Rather, the record must contain service records or other corroborative evidence substantiating the veteran's testimony or statements as to the occurrence of the claimed stressors. See West (Carlton) v. Brown, 7 Vet. App. 70, 76 (1994); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). The Board need not accept a non-combat veteran's lay statements asserting that an event (as opposed to medical symptoms) actually occurred, even though there is no "affirmative documentary evidence provid[ing] otherwise." Rather, all the evidence of record, including the absence of documentation in the military records, must be weighed in determining whether an event actually occurred. Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010); compare Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (finding that it was impermissible for the Board to find a veteran's lay statements regarding his medical symptoms not credible merely because there was no "confirmatory medical evidence"). "Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability. In the absence of a proof of present disability there can be no claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement of a "current disability" is satisfied if a disorder is diagnosed at the time a claim is filed or at any time during the pendency of the appeal; service connection may be awarded even though the disability resolves prior to adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In addition, consideration must be given to whether a disorder is diagnosed sufficiently proximate to the time the Veteran filed the claim. Romanowsky v. Shinseki, No. 11-3272, 2013 WL 3455655 (Vet. App. July 10, 2013). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including psychoses, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. As psychoses are considered to be chronic diseases for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A Veteran bears the "'evidentiary burden' to establish all elements of his claim, including the nexus requirement." Fagan v. Shinseki, 573 F. 3d 1282, 1287-88 (2009). The Board's duty is to assign probative value to all pertinent medical and lay evidence of record based on its credibility and competency, and then weigh the evidence regarding all material elements of a claim. See 38 U.S.C.A. § 7104(d); Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). A "veteran is given the 'benefit of the doubt' 'regarding any issue material' to the veteran's claim 'when there is an approximate balance of positive and negative evidence.'" Fagan, 573 F.3d at 1287 (quoting 38 U.S.C. § 5107(b)). Thus, if there is conflicting medical evidence, the Board may not ignore or disregard any medical professional's opinion, but may favor one medical opinion over by providing an adequate statement of reasons or bases. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Willis v. Derwinski, 1 Vet. App. 66, 70 (1991). A medical opinion is most probative if it is factually accurate, fully articulated, and based on sound reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In making all determinations, the Board must also fully consider the lay assertions of 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(a). Thus, a layperson is competent to report on the onset and continuity of his symptomatology. See Kahana, 24 Vet. App. at 438; Layno, 6 Vet. App. at 470 (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (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. See Kahana, 24 Vet. App. at 433; Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). For instance, a lay person may speak to etiology in those limited circumstances where a nexus is obvious merely through observation, such as a fall leading to a broken leg. Jandreau, 492 F.3d 1372, 1376-77. In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). In the present case, the Board finds that the weight of the probative evidence is against the claim for the following reasons. The Veteran's report of medical history completed at separation in May 1969 indicates that he denied any history of frequent trouble sleeping, frequent or terrifying nightmares, depression or excessive worry, or nervous trouble of any sort. When the Veteran was examined in October 1973 in connection with his reserve service, his psychiatric evaluation was normal. In January 2009, the Veteran submitted a stressor statement in which he indicated that he experienced stress while on guard duty in Korea during his service. He elaborated in a February 2009 written statement that his guard duty was performed alone and at night, and the Veteran noted that he was only provided with a weapon that had no ammunition. Nevertheless, the outcome of this case turns on whether the Veteran has a currently diagnosed acquired psychiatric disorder. There are several pertinent records that address this issue, including medical records and the Veteran's own statements. December 2008 and February 2009 private treatment records note the Veteran had a flat affect and contain an assessment of depression. A February 2009 private medical record pertaining to treatment for renal cancer indicates that the Veteran was emotionally stable with no recent history of depression, anxiety, or hallucinations. In January 2012, the Veteran underwent VA examination at which time his claims file was reviewed. The examiner concluded that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The rationale given was that the Veteran was not given a diagnosis of PTSD or any other mental disorder. The examiner specifically noted that the Veteran did not have a diagnosis of PTSD that conformed to DSM-IV criteria based upon the evaluation. His symptoms did not meet the diagnostic criteria for PTSD under DSM-IV, and the Veteran did not have a mental disorder that conformed to DSM-IV criteria. The examiner reiterated that there was no Axis I diagnosis attributable to the Veteran. On examination, the Veteran reported that he had been married for 37 years and had three children. The Veteran worked for a plant as a machine operator for 34 years until he retired in 2008. He reported doing well on his job over the years. The Veteran had no formal mental health treatment or history of suicide attempts. His primary care physician had offered him medication for depression and stress, but he refused the prescription. It was noted that it had occurred during the time of his renal cell carcinoma illness. Currently, the Veteran spent time doing odd jobs around his house. He enjoyed gardening and attended to his activities of daily living independently. The Veteran indicated that his stressor involved serving on night guard duty of warehouses while in Korea. He stated that was fearful for his safety at that time. However, the examiner indicated that this stressor did not meet Criterion A as adequate to support a diagnosis of PTSD. With regard to Criterion B, the Veteran had recurrent distressing dreams of the event, meeting this criterion. There was no persistent avoidance of stimuli associated with the trauma or numbing of general responsiveness, and Criterion C was not met. Criterion D was not met, because the Veteran only demonstrated hypervigilance and no other persistent symptoms of increased arousal not present before the trauma. Because the Veteran did not meet the previous criteria, Criterion E and Criterion F related to a PTSD diagnosis were also not met. With regard to symptomatology, it was noted that the Veteran demonstrated only depressed mood and anxiety. There were no other symptoms attributable to PTSD or any mental disorder. The Veteran had reported dreams and nightmares associated with serving guard duty in Korea. These occurred nightly in Korea and continued when he returned home. He rarely had these dreams presently and indicated that they had faded over the years. He endorsed feeling anxious at times in crowds. The January 2012 VA examiner concluded that the Veteran did not meet the full criteria for PTSD or other anxiety disorder at present. It was noted that he had episodes of depression in the past, but the examiner stated that he did not meet the criteria for a formal diagnosis. There are three opinions of record as to whether the Veteran had a diagnosed acquired psychiatric disorder at any time during the appeal period. These are the opinions of the Veteran, his private physician, and the VA examiner. Initially, the Board notes that the opinion of the Veteran is less probative than those provided by the medical professionals. While laypersons are often competent to provide opinions with regard to etiology, see Layno v. Brown, 6 Vet. App. 465, 469 (1994), the Board finds that the medical opinions are more probative. Those individuals have specific experience, education, and training that the Veteran is not shown to have. Therefore, their conclusions are more probative than the Veteran's general lay assertions regarding a diagnosis. In comparing the December 2008 and February 2009 private treatment records to the January 2012 VA examination report, the Board finds that the VA examination report is more probative evidence as to whether the Veteran manifested a psychiatric diagnosis at any time during the appeal period. First, the VA examiner conducted a full psychiatric evaluation, to include consideration of all factors and criteria associated with diagnosing a mental disorder under DSM-IV. There is no evidence that the Veteran's private physician conducted such an extensive evaluation before issuing his assessment of depression. Indeed, it appears that the only observation made was that, in December 2008, the Veteran had a flat affect and "was obviously depressed." When the assessment was continued in February 2009, no psychiatric symptomatology was discussed, noted, or observed. Furthermore, the VA examiner considered the prior assessment of depression and commented that, while the Veteran may have expressed such symptomatology, as was also found on examination in January 2012, these episodes did not meet the criteria for a formal diagnosis. Given the comprehensiveness of the opinion and its consideration of the previous assessment of depression, the Board finds that the January 2012 VA examination is the most probative evidence of record on the question of whether the Veteran manifested a psychiatric disorder at any time during the appeal period. This opinion shows that he did not. Basic entitlement to disability compensation derives from two statutes, both found in title 38, sections 1110 and 1131-the former relating to wartime disability compensation and the latter relating to peacetime disability compensation. Both statutes provide for compensation, beginning with the following words: "For disability resulting from personal injury suffered or disease contracted in the line of duty. . . ." 38 U.S.C. §§ 1110, 1131. Thus, in order for a veteran to qualify for entitlement to compensation under those statutes, the veteran must prove existence of a disability, and one that has resulted from a disease or injury that occurred in the line of duty. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. § 1110 , 1131; see Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). In light of the foregoing, the Board finds that the probative evidence of record weighs against a finding that the Veteran had a diagnosed acquired psychiatric disorder at any time during the appeal period or sufficiently proximate to the time he filed his claim. Accordingly, the claim is denied. 38 U.S.C.A. § 1131; 38 C.F.R. §§ 3.303, 3.304; Fagan, 573 F.3d at 1287; McClain, 21 Vet. App. at 321. 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 claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is denied. ____________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs