Citation Nr: 1335776	
Decision Date: 11/05/13    Archive Date: 11/13/13

DOCKET NO.  11-14 747	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to service connection for an acquired psychiatric disorder, including posttraumatic stress disorder (PTSD), depressive disorder, and anxiety.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

A. Dean, Associate Counsel



INTRODUCTION

The Veteran served on active duty (AD) from March 1984 to March 1986.  He had additional service in the Texas Army National Guard from March 1986 to March 1990, so presumably at times on active duty for training (ACDUTRA) and inactive duty training (INACDUTRA).

This appeal to the Board of Veterans' Appeals (Board/BVA) is from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) denying service connection specifically for PTSD.  Since, however, evidence in the file indicates the Veteran has been diagnosed with a depressive disorder and anxiety, the Board has recharacterized his claim to account for these additional diagnoses.  See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (per curiam).  In Clemons, the U.S. Court of Appeals for Veterans Claims (Court/CAVC) held that the scope of a mental health disability claim includes any mental disability that reasonably may be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record.  The Clemons Court found that, where a Veteran's claim identifies PTSD, without more, it cannot be a claim limited only to that diagnosis, rather it must be considered a claim for any mental disability that reasonably may be encompassed by the evidence of record.  The Clemons Court indicated that, when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled.  See also Brokowski v. Shinseki, 23 Vet. App. 79, 85 (2009) (A claimant's identification of the benefit sought does not require any technical precision), citing Ingram v. Nicholson, 21 Vet. App. 232, 256-57 (2007) (It is the pro se claimant who knows what symptoms he is experiencing and that are causing him disability); see, too, Robinson v. Nicholson, 21 Vet. App. 545, 552 (2008) (The Board is required to consider all issues raised either by the claimant or the evidence of record).  In Clemons, the Court explained that a claimant seeking service connection for psychiatric disability who has no special medical expertise is not competent to provide diagnosis requiring application of medical expertise to facts such as his description of history and symptoms; VA therefore should construe a claim for service connection based on reasonable expectations of a non-expert claimant.

In his May 2011 Substantive Appeal (on VA Form 9), the Veteran requested a hearing at the RO before a Veterans Law Judge of the Board - in other words, a Travel Board hearing.  However, in a subsequent August 2011 statement, the Veteran indicated he no longer wanted a hearing and wanted his appeal, instead, decided on the existing evidence of record.  Thus, he has withdrawn his Travel Board hearing request.  38 C.F.R. 20.704(e) (2013).


FINDINGS OF FACT

1.  There is conflicting evidence in the file as to whether the Veteran has the required diagnosis of PTSD in accordance with the criteria of the Fourth Edition of the Diagnostic and Statistical Manual for Mental Disorders (DSM-IV) or, for that matter, in accordance with the more recently issued Fifth Edition (DSM-V).

2.  But even assuming for the sake of argument he has this required diagnosis, given that this is at least an as likely as not proposition, the most probative (meaning competent and credible) evidence of record indicates his PTSD is less likely than not a result or consequence of his military service, including especially any traumatic events ("stressors") he may have experienced while in service.

3.  There equally is no competent and credible medical or other evidence indicating he has any other acquired psychiatric disorder or mental illness, including especially a depressive or anxiety disorder, as a result or consequence of his service or any other event coincident with his service.


CONCLUSION OF LAW

An acquired psychiatric disorder, including PTSD, depressive disorder, and anxiety, was not incurred in or aggravated by the Veteran's service.  38 U.S.C.A. §§ 1131, 5103(a), 5103A (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Standard of Review

In deciding this claim, the Board has reviewed all of the evidence in the claims file, both the physical claims file and electronic ("Virtual VA") claims file, and has an obligation to provide an adequate statement of reasons or bases supporting this decision.  See 38 U.S.C.A. § 7104(d)(1) (West 2002); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  While the Board must review the entire record, it need not discuss each and every piece of evidence, certainly not in exhaustive detail.  See id.  The analysis below therefore focuses only on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board addresses its reasons for rejecting evidence favorable to the claimant).

The Board must assess the credibility and weight of all relevant evidence, so both the medical and lay evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive and providing reasons for rejecting any evidence favorable to the claimant.  Caluza v. Brown, 7 Vet. App. 498, 506 (1995).

A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence.  See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.  When the evidence is in relative equipoise, the claimant prevails.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The preponderance of the evidence must weigh against a claim for benefits to be denied.  See Alemany v. Brown, 9 Vet. App. 518 (1996).

II. 
The Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), sets forth VA's duties to notify and assist a claimant in substantiating a claim for VA benefits.  The VCAA was codified as amended at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, and the implementing regulations were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative of any information and medical or lay evidence not of record that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  In order to satisfy its duty to notify the claimant under the VCAA, the United States Court of Appeals for Veterans Claims (Court/CAVC) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain; and (3) that the claimant is expected to provide.  Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  See also Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements).

Ideally, VCAA notice should be provided prior to an initial decision on a claim by the RO as the Agency of Original Jurisdiction (AOJ).  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  However, if notice was not provided prior to initially adjudicating a claim, or if provided and it was inadequate or incomplete, the issuance of a fully compliant VCAA notification followed by readjudication of the claim, including in a statement of the case (SOC) or supplemental SOC (SSOC), is sufficient to "cure" the timing defect because the intended purpose of the notice is preserved, not frustrated, since the Veteran is still given meaningful opportunity to participate effectively in the adjudication of his claim.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370 (2006). 


A claim of entitlement to service connection consists of five elements:  (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006).  The Court has held that notification of what evidence is necessary to substantiate the claim under 38 U.S.C.A. § 5103(a) thus requires notice of all five of these elements, so including concerning the "downstream" disability rating and effective date that are assigned once service connection is granted.  See id. at 486; Quartuccio, 16 Vet. App. at 187.

In Shinseki v. Sanders, 129 S. Ct. 1696 (2009), however, the U.S. Supreme Court clarified that VCAA notice errors, even when shown to have occurred, are not presumptively prejudicial, rather, must be judged on a case-by-case basis.  And as the pleading party attacking the agency's decision, the Veteran, not VA, bears this burden of proof of not only establishing error but also, above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of his claim.

Here, prior to initially deciding this claim in June 2010, an October 2009 letter informed the Veteran of all five elements of his claim, gave examples of the types of evidence he could submit in support of his claim, and informed him of his and VA's respective responsibilities in obtaining relevant records and other evidence on his behalf that would tend to support his claim.  He therefore received all required notice and in the preferred sequence.

VA's duty to assist under the VCAA includes helping the claimant obtain relevant records, including service treatment records (STRs) and other pertinent records, such as regarding his evaluation and treatment since service, whether from VA or private healthcare providers, as well as providing an examination or obtaining a medical opinion when needed to make a decision on the claim.  See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).


Here, a March 2010 Memorandum indicates the Veteran's STRs (i.e., these used to be referred to as service medical records (SMRs)) for the duration of his AD service are unavailable.  The Memorandum explained that the procedures for obtaining the records had been followed, that all efforts to obtain the needed evidence had been exhausted, and that further attempts would be futile.  The Board finds the RO made sufficient attempts to obtain these records and that further attempts to obtain them indeed would be futile.  See Chest v. Peake, 283 Fed. App. 814 (Fed. Cir. 2008); 38 C.F.R. § 3.159(c)(2) (providing that VA will end its efforts to obtain records from a Federal department or agency only if VA concludes the records sought do not exist or that agency advises VA the requested records do not exist or that the custodian does not have them).  The Veteran also was appropriately notified.  38 C.F.R. § 3.159(e)(1).

When, as here, the Veteran's STRs are unavailable or incomplete, the Board's obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule is heightened.  See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992).  See also Moore v. Derwinski, 1 Vet. App. 401 (1991) (holding that this heightened duty also includes the obligation to search for alternative records, such as by having the Veteran complete and return VA Form 13055 allowing for the search for evidence from the National Archives and Records Administration (NARA) or for extracts or other evidence from the Surgeon General's Office (SGO)).

Here, not only did the RO make the Formal Finding on the Unavailability of the STRs in the March 2010 Memorandum, but the RO also sent the Veteran a letter in April 2010 regarding this and, as required additionally, provided him opportunity to supplement the file with alternate sources of evidence to try and compensate for his missing STRs, including with any relevant documents in his personal possession.

Further concerning this, the Board must also point out that the O'Hare precedent does not raise a presumption that the missing medical records, if available for consideration, necessarily would support the claim.  That is to say, missing STRs do not lower the threshold for an allowance of a claim; there is no reverse presumption for granting a claim.  The legal standard for proving a claim is not lowered; rather, the Board's obligation to discuss and evaluate evidence is heightened.  See Russo v. Brown, 9 Vet. App. 46 (1996).  The case law does not establish a heightened "benefit of the doubt," only a heightened duty of the Board to consider the applicability of the benefit-of-the-doubt doctrine, to assist the claimant in developing the claim, and to explain its decision when a claimant's medical records have been lost or destroyed.  See Ussery v. Brown, 8 Vet. App. 64 (1995).  Thus, missing STRs, alone, while indeed unfortunate, do not obviate the need for the Veteran to still have competent and credible evidence supporting his claim for service connection by suggesting a correlation between his claimed condition and his military service.  See Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore, 1 Vet. App. at 406 and O'Hare, 1 Vet. App. at 367).

His post-service VA and private treatment records are on file.  He has not identified any other outstanding records that he wants VA to obtain or that he believes are relevant to his claim, so needing to be obtained.  Therefore, the duty to assist him in obtaining pertinent records has been satisfied, to the extent identified records are obtainable.  See 38 C.F.R. § 3.159(c).

The duty to assist also, as mentioned, includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim.  38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. §§ 3.159(c)(4), 3.326(a).  See also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006).  When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).

The Board realizes the Veteran has not been provided a VA compensation examination in response to this claim, nor has a medical nexus opinion been obtained.  VA is obliged to provide a VA compensation examination or medical opinion when (1) there is competent evidence the Veteran has a current disability or persistent or recurrent symptoms of disability; (2) there is evidence establishing that he suffered an event, injury or a disease in service or has a disease or symptoms of a disease within a specified presumptive period; (3) the evidence indicates the current disability or symptoms may be associated with service or a service-connected disability; but (4) there is insufficient medical evidence on file to decide the claim.  McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006).  See also 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4).  In both McLendon and Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010), the U.S. Court of Appeals for Veterans Claims (Veterans Court/CAVC) and the U.S. Court of Appeals for the Federal Circuit (Federal Circuit Court) clarified that, when determining whether a VA examination and opinion are required under 38 U.S.C. § 5103A(d)(2), the law requires competent evidence of a disability or persistent or recurrent symptoms of a disability, but does not require competent evidence of a nexus, only that the evidence indicates an association between the disability and service or a service-connected disability.

But as discussed in greater detail below, there is no competent and credible evidence suggesting the Veteran's depressive and anxiety disorders, although diagnosed, are related or attributable to his active military service - irrespective of whether on AD, ACDUTRA or INACDUTRA.  In addition, there is conflicting evidence as to whether he even has PTSD, and regardless no competent and credible evidence suggesting that, even if accepting he does have PTSD, it is etiologically related to his active military service, again, whether on AD, ACDUTRA or INACDUTRA, and particularly the result of his claimed stressor of a botched field exercise in Berlin, Germany.  Indeed, there is not the required confirmation of the occurrence of this alleged inciting event during his service.  Although, as already conceded, his STRs are unavailable and presumed unobtainable, the RO already has tried to corroborate the occurrence of this claimed event.  But the RO's attempts to do this were unsuccessful.  According to a June 2010 VA Memorandum there was a Formal Finding of a lack of information required to corroborate stressor(s) associated with this claim of entitlement to service connection for PTSD.  The Memorandum explained that a determination had been made that the information required to corroborate the stressful events described by the Veteran is insufficient to send to the U.S. Army and Joint Services Records Research Center (JSRRC) and/or insufficient to allow for meaningful research of Marines Corps or NARA records.  The Memorandum then goes on to explain that all procedures to obtain this information from the Veteran had been properly followed and documented these efforts.  Moreover, since exhausted, the Memorandum explained that any further attempts would be futile.

Therefore, as an unfortunate consequence, any examination and opinion requested necessarily would have to consider an alleged event that has not been shown to have actually occurred, so any opinion relating the PTSD to that event, even if offered, necessarily would be relying on an uncorroborated, and therefore unreliable history, which would undermine entirely the opinion's probative value, unless VA blindly accepts as necessarily true any and everything the Veteran alleges to have occurred.  VA is not obligated to schedule an examination in this circumstance merely as a matter of course.  That claimed precipitating event, since not shown to actually have occurred, thus cannot be the reason he now has PTSD.  There simply is no competent and credible evidence indicating there is a nexus or etiological link between his military service - especially his claimed stressor in Germany that remains uncorroborated - and this diagnosis, which did not happen until many years after his service had ended.  Therefore, there is not the required evidence to warrant the scheduling of a VA compensation examination for a medical opinion.  His mere belief that he has PTSD, or for that matter any other acquired psychiatric disorder such as depressive disorder or anxiety disorder, as a result of an uncorroborated event during his service is insufficient to trigger the duty to assist by arranging for a VA compensation examination and opinion, as this would circumvent the craftily tailored language of the statutes and regulations governing when examinations and opinions should be obtained.  See Duenas v. Principi, 18 Vet. App. 512, 519 (2004) (indicating that, generally, VA is not obligated to provide an examination for a medical nexus opinion based on unsubstantiated lay statements alone).

He has received all essential notice and assistance, has had a meaningful opportunity to participate effectively in the development of this claim, and is not prejudiced by any technical notice or assistance deficiency along the way.  Under the circumstances presented, it is difficult to discern what additional guidance VA could have provided him regarding what further evidence he should submit to substantiate his claim.  See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004).

Accordingly, the Board may proceed with appellate review of this claim.

III. Legal Criteria

Service connection is granted 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. § 1131 (West 2002); 38 C.F.R. § 3.303(a) (2013).  Service connection may be granted for a disease diagnosed after discharge when the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303(d) (2013).

Establishing entitlement to direct service connection generally 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) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a relationship or correlation between the disease or injury in service and the present disability - the so-called "nexus" requirement.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247, 252 (1999); Caluza, 7 Vet. App. at 506, aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table).

Service connection for PTSD, in particular, requires:  (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (i.e., DSM-IV); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor.  38 C.F.R. § 3.304(f).  See also Cohen v. Brown, 10 Vet. App. 128 (1997).

A "clear" diagnosis of PTSD is no longer required.  Rather, as mentioned, a diagnosis of PTSD need only be in accordance with 38 C.F.R. § 4.125(a), which simply mandates that, for VA purposes, all mental disorder 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).

The DSM-V (the latest version of the DSM) has now been officially released.  However, 38 C.F.R. § 4.130 still explicitly refers to the DSM-IV.  The regulation legally requires to continue considering this prior version of the DSM until such time as the regulation is changed.  There is a regulation change in the works that would change the regulation to reference "the current version of the DSM."  However, it is unclear when that proposed change will be published.  So, for now, the regulation still explicitly refers to the DSM-IV, regardless of the fact that one may begin seeing private evidence referring to criteria under the DSM-V.

The Court has taken judicial notice of the mental health profession's adoption of the DSM-IV as well as its more liberalizing standards to establish a diagnosis of PTSD.  The Court acknowledged the change from an objective "would evoke . . . in almost anyone" standard in assessing whether a stressor is sufficient to trigger PTSD to a subjective standard (e.g., whether a person's exposure to a traumatic event and response involved intense fear, helplessness, or horror).  Thus, as noted by the Court, a more susceptible person could have PTSD under the DSM-IV criteria given his or her exposure to a traumatic event that would not necessarily have the same effect on "almost everyone."  Cohen, 10 Vet. App. 128, 140-141 (1997).

Additionally, claims for certain "chronic" diseases - namely, those listed in 38 C.F.R. § 3.309(a) - benefit from a somewhat more relaxed evidentiary standard under 38 C.F.R. § 3.303(b) by allowing a Veteran to show evidence of continuity of symptomatology since service as an alternative means of linking his currently claimed disability to his service.  A recent decision of the Federal Circuit Court, however, clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as "chronic" under 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013).  Psychoses are among the conditions in this VA regulation considered to be chronic, per se, and therefore subject to this alternative pleading and proof exception.


Psychoses also will be presumed to have been incurred in service if manifested to a compensable degree of at least 10-percent disabling within one year after service.  This presumption, however, is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a).

According to 38 C.F.R. § 3.384, a "psychosis" includes the following specific disorders:  brief psychotic disorder, delusional disorder, psychotic disorder due to general medical condition, psychotic disorder not otherwise specified, schizoaffective disorder, schizophrenia, schizophreniform disorder, shared psychotic disorder, and substance-induced psychotic disorder.

So this list of psychoses does not include PTSD or generalized anxiety disorder, which instead are neuroses.  Consequently, these disorders are not subject to the pleading and proof exceptions of 38 C.F.R. §§ 3.303(b), 3.307 and 3.309(a).  The Veteran also has received a diagnosis of major depressive disorder with psychotic features, which at least arguably does fall within the purview of these pleading and proof exceptions.

Thus, service connection may be established either by showing direct service incurrence or aggravation or by using applicable presumptions, but only if available.  See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

Generally speaking, personality disorders are "defects" that are not "diseases" or "injuries" within the meaning of applicable legislation for VA disability compensation purposes and, therefore, cannot be service connected.  38 C.F.R. §§ 3.303(c), 4.9, 4.127 (2012).  Defects are defined as "structural or inherent abnormalities or conditions which are more or less stationary in nature."  VAOPGCPREC 82-90 (July 18, 1990).  Congenital or developmental "defects," such as a personality disorders, automatically rebut the presumption of soundness and therefore are considered to have preexisted service.  38 C.F.R. §§ 3.303(c), 4.9; Quirin v. Shinseki, 22 Vet. App. 390, 397 (2009); Winn v. Brown, 8 Vet. App. 510, 516 (1996) (holding that the Secretary's exclusion of personality disorders from "diseases" or "injuries" as a congenital or developmental defect, such that the presumption of soundness does not apply, to be a valid exercise of the authority granted to the Secretary).  As such, "[s]ervice connection of personality disorders, whether on a direct basis or by aggravation, is...prohibited...."  61 Fed. Reg. 52,695.

However, 38 C.F.R. § 4.127 provides that disability resulting from a mental disorder that is superimposed upon a personality disorder may be service connected, and, in accordance with 38 C.F.R. § 3.310(a), personality disorders that result from service-connected disabilities may be service connected on a secondary basis.  See also VAOPGCPREC 82-90 (July 18, 1990) (noting that congenital and developmental defects can be subject to superimposed disease or injury such that service connection may be granted where the superimposed disease or injury occurs during service); 61 Fed. Reg. 52,695 (explaining that "except as provided in § 3.310(a) in this chapter," § 4.127 was added to reinforce the principle that organic personality disorders that develop secondary to head trauma, epilepsy, etc., will be service connected secondary to these conditions).

Therefore, while 38 C.F.R. §§ 3.303(c), 4.9, and 4.127 prohibit any grant of service connection for a personality disorder, even if aggravated in service, the Veteran's other diagnosed psychiatric disorders may provide a basis for service connection if the evidence shows these disorders were unrelated to or superimposed upon his diagnosed personality disorder.

The first and indeed perhaps most fundamental requirement for any service-connection claim is there must be competent and credible evidence of the existence of the currently claimed disability.  Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (service connection presupposes a current diagnosis of the condition claimed, to at least confirm the Veteran has it; without this minimum level of proof, there can be no valid claim). 


In its determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and continuity of his current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (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 or to establish etiology if:  (1) the layperson is competent to identify the medical condition, (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.  Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77.

When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011).

But in ultimately deciding the probative value of evidence, the Board must assess not only its competence but also credibility since, in combination, they affect its weight.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  In Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit Court, citing its decision in Madden, recognized that that Board had inherent fact-finding ability.  Id., at 1076; see also 38 U.S.C.A. § 7104(a).  Moreover, the Veterans Court (CAVC) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).  As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza, 7 Vet. App. at 511, aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996).

IV. 
Analysis

The Veteran's claim always has been for PTSD, specifically, although as explained the Board also is considering the other diagnoses of depressive disorder and anxiety disorder that also have been made.  He attributes his current mental illness to stressors he says occurred during his active military service.  Specifically, he claims that, while on a field exercise in Berlin, Germany, the convoy headed in the wrong direction, tanks and guns were pointed at them, and soldiers were crying and screaming since fearful they were going to die.  He also alleges that, around the same time, he and another soldier had guard duty, the other soldier heard a noise in the bushes, started shooting, and was subsequently punished.  The Veteran claims that, as a result, he has nightmares of these incidents, is afraid of crowds, has anger problems, and has problems relating to others or being in relationships.

In the June 2010 VA Memorandum already referenced, the RO formally determined that the information required to corroborate his reported stressful events in service was insufficient to send to the JSRRC and/or insufficient to allow for meaningful research for the required corroboration.  Thus, his stressors have not been shown to have actually occurred.

And no evidence shows, nor has he alleged, that he engaged in combat with an enemy force while in service.  He served entirely during peacetime, irrespective of whether considering his AD, ACDUTRA or INACDUTRA.  See 38 C.F.R. § 3.2.  And he was not awarded any medal, commendation, or other award typically associated with valor or heroism shown while engaged in combat with an enemy force.  See VAOPGCPREC 12-99 (October 18, 1999).  This determination is made on an individual, case-by-case, basis.  See Moran v. Peake, 525 F.3d 1157 (Fed. Cir. 2008).


Where, as here, a determination is made that the Veteran has not shown he "engaged in combat with the enemy," or that the claimed stressor is not related to combat, his lay testimony alone will not be enough to establish the occurrence of the alleged stressor.  Rather, the record must contain service records or other corroborative evidence that substantiates or verifies his testimony or statements as to the occurrence of the claimed stressor.  See West (Carlton) v. Brown, 7 Vet. App. 70, 76 (1994); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993).  Moreover, a medical opinion diagnosing PTSD generally does not suffice to verify the occurrence of the claimed in-service stressors.  Cohen, 10 Vet. App. at 142.  Generally, a stressor cannot be established as having occurred merely by 
after-the-fact medical nexus evidence.  See Moreau v. Brown, 9 Vet. App. 389, 395-96 (1996).

There are exceptions to this general rule, however, albeit only in specifically defined situations and circumstances.  Notably, VA has amended its adjudication regulations governing claims for service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the required 
in-service stressor.  See 75 Fed. Reg. 39843 (July 13, 2010).  Specifically, the final rule amended 38 C.F.R. § 3.304(f) by redesignating current paragraphs (f)(3) and (f)(4) as paragraphs (f)(4) and (f)(5), respectively, and by adding a new paragraph (f)(3) that reads as follows:  If a stressor claimed by a Veteran is related to the 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 the 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 the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed 
in-service stressor.


Here, the Veteran's DD Form 214 indicates no foreign or sea service, thus making his claimed stressors while in Germany inconsistent with the places, types, and circumstances of his service.  38 U.S.C.A. § 1154(a).  Thus, his lay testimony alone is not enough to establish the occurrence of the claimed stressors.  Moreover, this patent inconsistency when comparing information on his DD Form 214 showing no foreign or sea service, with his assertion that certain events occurred while he was stationed overseas in Germany, tends to undermine the credibility of his lay testimony regarding the occurrence of these claimed events.  This, in turn, is further reason why the Board did not have him examined for a medical opinion concerning this claim.  See Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (Where the Board makes a finding that lay evidence regarding an in-service event or injury is not credible, a VA examination is not required.).

He has provided numerous statements describing his claimed stressors and his symptomatology.  In October 2009, several of his family members, including his mother, father, two sisters, and nephew, also provided supporting statements regarding his claim, in essence stating that he was a different person altogether since his service.  The indicated he discussed the Army and his experiences frequently, and that his extreme anger and other behavior frightened them.  
His ex-wife also provided a supporting statement in August 2010, wherein she, too, asserted the military had changed him.  She added that he had trouble sleeping and would repeatedly check the doors, windows, and around the apartment.  As well, in March 2012 a fellow service member, K.F., provided a "buddy" statement wherein he reported that, during a training event in Germany, the Veteran was reportedly one of several members of the convoy that was lost for a few days.

A February 2010 letter from the Director of Armed Forces Counseling Services at Andrews Center Behavioral Healthcare System indicated the Veteran had been receiving mental health services there since September 2008, and that he had received diagnoses of PTSD, major depressive disorder with psychotic features, and generalized anxiety disorder.


Other records in the file, including private treatment records, include no specific mention of PTSD, beyond simply that the Veteran had a diagnosis.  Moreover, any diagnosis would likely to have been based on his lay statements of asserted 
in-service stressors, which, as already discussed, have not been independently verified.  A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment.  See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner's opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the Veteran).  As the Court explained in Coburn v. Nicholson, 19 Vet. App. 427, 433 (2006), reliance on a Veteran's statements renders a medical report not credible only if the Board rejects the statements of the Veteran as lacking credibility.

Generally, the degree of probative value that may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the Veteran's claims file, though the latter, alone, is not determinative or dispositive of the opinion's probative value.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000).  Also significant, and indeed what is most significant, is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data.  See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually had examined the Veteran, did not provide the extent of any examination, and did not provide any supporting clinical data).  The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998).


So as the Court made clear in Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008), the probative value of a medical opinion comes from when there is factually accurate, fully articulated, and sound reasoning for the conclusion, not just from mere review of the claims file.  See also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[a] medical opinion...must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions").

The Board, then, may conversely reject a medical opinion that was based on an inaccurate factual premise.  Reonal v. Brown, 5 Vet. App. 458, 461 (1993).

Here, an August 2009 record from a different private treatment provider indicates the Veteran has a VA diagnosis of PTSD; however, this information appears to be incorrect, as the Veteran's diagnosis is from a private treatment provider, not VA.  A review of his VA treatment records shows no indication that he was treated for PTSD or any other psychiatric disorder.  His records indicate a past medical history that includes depressive disorder not elsewhere classified (NEC) and anxiety state not otherwise specified (NOS), and that he receives treatment for through private treatment providers.  His VA records are unremarkable for any treatment for or diagnosis of PTSD.

Regarding the lay statements that were submitted from him, his family members and ex-wife, and his fellow service member, the governing VA regulation, 38 C.F.R. § 3.304(f), stipulates that a diagnosis of PTSD be in accordance with the DSM-IV criteria.  This necessarily is a medical, not a lay, determination.  See 38 C.F.R. § 3.159(a)(1) versus (a)(2).  Thus, the Veteran, his family members and ex-wife, and the other servicemember are not competent to make this determination themselves.  Davidson, 581 F.3d 1313; Jandreau, 492 F.3d at 1377; Barr, 21 Vet. App. at 310.  The Veteran nonetheless may attest to symptoms he experiences and has in years past, including after the purported events in question, and during the many years since his discharge from service, as this requires only his personal firsthand knowledge of a factual matter.  See id.  See also Washington v. Nicholson, 19 Vet. App. 363 (2005) (A Veteran is competent to report what occurred in service and since because testimony regarding firsthand knowledge of a factual matter is competent).

But as the Federal Circuit Court explained in Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), when addressing lay evidence as potentially competent evidence to support the presence of disability, including during service and since, and even where not corroborated by contemporaneous medical evidence such as actual treatment records, the Board nonetheless retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence.  See Buchanan, 451 F.3d at 1336 ("Nor do we hold that the Board cannot weigh the absence of contemporaneous medical evidence against the lay evidence of record").  Moreover, although the Board cannot reject a claimant's statements merely because he is an interested party, the claimant's interest may affect the credibility of his testimony when considered in light of the other factors.  See Cartright, 2 Vet. App. at 25; accord Buchanan, 451 F.3d at 1337 (holding that "the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias . . . .").

While the Veteran did submit a buddy statement that also mentioned participating in a field exercise in Germany, the description of the event differed markedly from the Veteran's account, which makes both the Veteran and the buddy less credible.

The decline in their credibility, in turn, tends to undermine the diagnosis of PTSD that is reported in the private, though not also, VA records - at least to the extent there is seeming attribution of this diagnosis to events that supposedly occurred during the Veterans service.  While it is true that, according to the holding in Cohen, VA must presume a PTSD diagnosis was in accordance with the DSM criteria, both in terms of the adequacy and sufficiency of the stressor claimed, the Board does not also have to blindly accepts the occurrence of the claimed stressor, especially when, as here, there is other evidence in the file tending to refute its occurrence.  So even accepting some have determined the Veteran has PTSD, there is not the required attribution of this diagnosis to a confirmed event coincident with his service.  See Rucker v. Brown, 10 Vet. App. 67 (1997) and Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered" by the trier of fact) and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")).

As also already mentioned, the Veteran's treatment records indicate he has past diagnoses of and treatment for a depressive disorder and anxiety.  The first evidence of record for these conditions is from September 2008, so some 18 years after the conclusion of even his more recent service in the Texas Army National Guard in March 1990.

The term active military service includes AD, so includes the Veteran's prior service from March 1984 to March 1986, and any period of ACDUTRA, so including his additional service that lasted until March 1990, during which he was disabled from a disease or an injury incurred in or aggravated in the line of duty, and any period of INACDUTRA, so relating to that additional service that last up until March 1990, during which he was disabled from an injury, though not also a disease, incurred or aggravated in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training.  38 U.S.C.A. § 101(24), 106; 38 C.F.R. § 3.6(a).

Reserve and National Guard service generally means ACDUTRA and INACDUTRA.  ACDUTRA is full-time duty for training purposes performed by Reservists and National Guardsmen pursuant to 32 U.S.C.A. §§ 316 , 502, 503, 504, or 505. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c).  Basically, this refers to the two weeks of annual training, sometimes referred to as "summer camp," which each Reservist or National Guardsman must perform each year.  It can also refer to the Reservist's or Guardsman's initial period of training.

INACDUTRA includes duty, other than full-time duty, performed for training purposes by Reservists and National Guardsmen pursuant to 32 U.S.C.A. §§ 316, 502, 503, 504, or 505.  38 U.S.C.A. § 101(23); 38 C.F.R. § 3.6(d).  Basically, this refers to the twelve four-hour weekend drills that each Reservist or National Guardsman must perform each year and is often referred to as "weekend warrior" training.  These drills are deemed to be part-time training.

National Guard duty is distinguishable from other Reserve service, however, in that a member of the National Guard may be called to duty by the governor of their state.  "[M]embers of the National Guard only serve the federal military when they are formally called into the military service of the United States[; a]t all other times, National Guard members serve solely as members of the State militia under the command of a state governor."  Allen v. Nicholson, 21 Vet. App. 54, 57 (2007).  "Therefore, to have basic eligibility for Veterans benefits based on a period of duty as a member of a state National Guard, a National Guardsman must have been ordered into Federal service by the President of the United States, see 10 U.S.C. § 12401, or must have performed "full-time duty" under the provisions of 32 U.S.C. §§ 316, 502, 503, 504, or 505.  Id.

So to establish status as a "Veteran" based upon a period of ACDUTRA, a claimant must establish that he was disabled from disease or injury incurred or aggravated in the line of duty during that period of ACDUTRA.  38 C.F.R. § 3.1(a), (d); Harris v. West, 13 Vet. App. 509, 511 (2000); Paulson v. Brown, 7 Vet. App. 466, 470 (1995).

The fact that a claimant has established status as a "Veteran" for purposes of other periods of service (e.g., prior AD) does not obviate the need for him to establish that he is also a "Veteran" for purposes of the period of ACDUTRA where the claim for benefits is premised on that period of ACDUTRA.  Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998).

Similarly, in order for a claimant to achieve "Veteran" status and be eligible for service connection for disability claimed during his inactive service, the record must establish that he was disabled from an injury, but not disease, incurred or aggravated during INACDUTRA.  Id; see also Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991).


Consider also that presumptive service connection, as well as the presumptions of soundness and aggravation, do not apply to claims predicated on ACDUTRA and INACDUTRA service, only AD.  See Biggins, 1 Vet. App. at 477-78; Smith v. Shinseki, 24 Vet. App. 40 (2010).

This claimant does not assert that he has had ongoing symptoms since his service, nor does the evidence otherwise suggest that he has, except for the statements alleging he was a changed person after his time in the military.  Still, there is no competent and credible evidence in the file relating even his additionally diagnosed depressive and anxiety disorders to his service, including especially to his claimed but unverified stressors.

There equally is no suggestion the major depressive disorder with psychotic features, as a possible chronic disease (psychosis) according to 38 C.F.R. § 3.384, initially manifested within the required one year following the conclusion of his service, certainly not to the required minimum compensable degree of at least 
10-percent disabling to warrant presuming it was incurred during his service if considering 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 and 38 C.F.R. §§ 3.307, 3.309.  The earliest reference to this diagnosis, instead, was in September 2008.

In sum, there is no competent and credible evidence that his alleged stressors occurred, nor the required attribution of his PTSD, even if accepting he has it, to a confirmed stressor.  There also is no competent and credible evidence that he has any other psychiatric disorder - namely, generalized anxiety disorder and major depressive disorder with psychotic features - as a result of his service.  See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service.").


Therefore, the Board finds that the preponderance of the evidence is against this claim, so there is no reasonable doubt to resolve in his favor, and this 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).


ORDER

The claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, depressive disorder, and anxiety, is denied.



____________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs