Citation Nr: 1335791 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 11-02 722 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). ATTORNEY FOR THE BOARD L. J. Vecchiollo, Counsel INTRODUCTION The Veteran served on active duty from October 1986 to February 1987, and from July 1991 to November 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to service connection for PTSD. The Board acknowledges the United States Court of Appeals for Veterans Claims (Court) holding in Clemons v. Shinseki, that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. 23 Vet. App. 1, 5-6 (2009). However, in this case, service connection for dysthymia with depression was denied in an unappealed July 2003 decision. Service connection for anxiety disorders, major depressive disorder, and cognitive dysfunction was considered in a July 2009 rating decision. The Veteran appealed the decision and was issued a statement of the case (SOC) in January 2010 on these three issues. However, he did not file a timely substantive appeal regarding these psychiatric disorders and they are not before the Board. 38 C.F.R. §§ 20.200, 20.202, 20.302. In addition, subsequent to the January 2010 SOC, the Veteran has only presented argument regarding the separately-decided claim for entitlement to service connection for PTSD. Therefore, the scope of the claim presently before the Board is limited to entitlement to service connection for PTSD. FINDING OF FACT The most probative evidence indicates that the Veteran does not suffer from PTSD as a result of active service. CONCLUSION OF LAW The criteria for establishing service connection for PTSD have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2013). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In this case, a September 2009 letter provided the Veteran with notice regarding what information and evidence is needed to substantiate his claim for service connection for PTSD, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letter also advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. The claim was last readjudicated in August 2013. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. The record includes service personnel records, post-service treatment records, lay statements, articles, responses from the U.S. Army and Joint Services Records Research Center (JSRRC), and VA examination reports. The Veteran's service treatment records (STRs) are unavailable. Under such circumstances, VA has a heightened duty "to consider the applicability of the benefit of the doubt rule, to assist the claimant in developing the claim, and to explain its decision when the Veteran's treatment records have been destroyed." Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005), citing Russo v. Brown, 9 Vet. App. 46, 51 (1996). Although it is unfortunate that the Veteran's STRs are unavailable, he is not prejudiced by these missing records as he has never alleged treatment for PTSD during service. As discussed above, the Veteran was notified and aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran was an active participant in the claims process by submitting evidence and argument. Thus, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notices is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection for PTSD requires: (1) medical evidence diagnosing PTSD; (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). If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(1). See also 38 U.S.C.A. § 1154(b). If there is no combat, or if there is a determination that the veteran engaged in combat but the claimed stressor is not related to such combat, there must be independent evidence to corroborate the veteran's statement as to the occurrence of the claimed stressor. Doran v. Brown, 9 Vet. App. 163, 166 (1996). Moreover, a medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressors. Cohen v. Brown, 10 Vet. App. 128, 142 (1997); Moreau v. Brown, 9 Vet. App. 389, 395-96 (1996). However, 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. "[F]ear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. See 75 Fed. Reg. 39,843 (Jul. 13, 2010) (codified at 38 C.F.R. § 3.304(f)(3)). The Board has reviewed all the evidence in the appellant's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran asserts that he is entitled to service connection for PTSD due to stressors experienced during his four-months of service in Kuwait in 1991. However, as outlined below, the Board finds the preponderance of the competent and credible evidence is against the claim. The Veteran presented at a VA medical facility in January 1996. In a VA mental health clinic consultation, the Veteran complained of depression which had become progressively worse over the last few months. The Veteran stated that he came from a broken family, has a depressed mother, and has been quiet and relatively sad for most of his life. He also related multiple problems regarding his marriage of two years. The diagnoses were dysthymia, rule out adjustment disorder, and rule out dependent personality disorder. Subsequently, his VA primary care physician prescribed medication for his depression. A November 1999 VA treatment note indicted that Veteran has been feeling sad for six or seven years. Depression was diagnosed. In a June 2000 VA consultation note, the Veteran stated that he has been feeling sad and depressed for many years. In May 2002 the Veteran requested service connection for depression, stating that condition began in January 1992. In a May 2002 statement, the Veteran's mother stated that the Veteran used to have energy and enthusiasm about life, and had plans, hope, and happiness about his future. However, after returning from his service during the Persian Gulf War, his behavior had completely changed. He became depressed, with no enthusiasm. A VA mental disorders examination was conducted in May 2003. The examiner reviewed the Veteran's claims file. The Veteran related that all his difficulties with anxiety and depression date back to his time in Kuwait. The Veteran stated that he served in Kuwait from August to November 1991, with a heavy material supply company. The examiner noted that hostilities had ceased before this period. The Veteran stated that the location was frightening, and once his column of vehicles received sniper fire. The Veteran noted that no one in his unit was wounded or killed. He also noted that he was never subjected to artillery fire. The diagnosis was dysthymia without any evidence that it is related to or aggravated by military service. The examiner noted that the Veteran reported that his depressive symptoms began during his tour in Kuwait. However, the examiner noted the statement was contrary to previous reports documented in his medical record. The examiner noted that the Veteran was unable to relate any specific causative factor during his tour for his psychiatric problems. The examiner stated that there is no evidence in the history or examination to suggest that the Veteran's time in Kuwait played any role in his depression. The examiner noted that the Veteran is living in a family with marital discord followed by divorce and a family history of depression, i.e., his mother, suggest that his vulnerability factors predate his time in Kuwait. In an August 2003 social worker general note, the Veteran denied any combat-related dreams and denied ever being in combat. He denied any specific stressors related to his Persian Gulf service. He stated that he has been sad for the past six or seven years, had panic attacks for the past three or four years, and that he hears voices. The examiner noted that the Veteran's complaints are very vague, and he took a long time to respond to questions. The examiner questioned whether the Veteran may have a possible motivation to obtain service connection. The diagnoses were depression. not otherwise specified; and anxiety, not otherwise specified, with panic symptoms. In a January 2005 statement, the Veteran's spouse stated that the Veteran suffers from energy decline and short term memory loss. In a January 2005 statement, the Veteran's brother stated that the Veteran is depressed, nervous, and irritable. An April 2008 treatment note from the VA facility in Mountain Home, Tennessee, indicates that the Veteran was diagnosed with anxiety. A June 2008 Mountain Home treatment note indicated that the Veteran was diagnosed with depressive disorder as well as anxiety. A July 2008 Mountain Home treatment note indicated that the Veteran's only psychiatric complaints were occasional panic attacks and difficulty being in crowds. He denied any psychosocial stressors. The diagnosis was panic disability with agoraphobia. In December 2008, the Veteran filed a claim for service connection for anxiety and depression. Thereafter, he presented to the Mountain Home psychiatric emergency clinic in February 2009, wishing help with his depression and anxiety and stating that although going to VA for several years he never received any help and that no one listens to him. It was noted that he then "launch[ed] into a list of the various traumas he has experienced that keep returning to haunt him." Diagnoses included PTSD. In June 2009, the Veteran was admitted to Mountain Home due to increasing PTSD symptoms. The diagnoses were chronic PTSD; anxiety disorder; depressive disorder, not otherwise specified; and personality disorders/traits. A June 2009 neuropsychiatric consultation noted that the Veteran was administered several psychiatric tests which indicated that he was suffering from PTSD; major depressive disorder, recurrent, severe; and dependent personality disorder. In a September 2009 VA treatment note from Mountain Home, a VA psychiatrist diagnosed the Veteran with PTSD (Gulf War-Desert Storm) and depression, recurrent, severe with recurrent features (questionable organic component due to Gulf War Syndrome). There was some improvement with medication. A history of panic disorder/anxiety disability and nicotine dependency. An Axis II diagnosis was deferred but dependent traits were noted. The Veteran's psychosocial stressors were medical issues, combat exposure, chronic fatigue/pain, questionable Gulf War Syndrome, and being unemployed. In his November 2011 substantive appeal, the Veteran listed the following stressors: a serviceman from another company being killed, witnessing his commanding officer being handcuffed and taken away by military police for covering up the killing, daily fear for his life due to hostile military and terrorist activity, hunting for unexploded ordinance and mines by walking around, fearing chemical attacks, having his vehicle hit by sniper fire, witnessing armed terrorists, and experiencing sporadic gun fire and explosions. The Veteran was afforded an initial PTSD VA examination in January 2013. It was noted that the Veteran alleged stressors related to hostile military or terrorist activity. After reviewing the Veteran's claims file, examining him, and discussing his alleged in-service stressors, and past medical history, the examiner concluded that the Veteran did not meet the criteria under the DSM-IV for a diagnosis of PTSD. The diagnoses were dysthymic disorder, generalized anxiety disorder, and personality disorder, not otherwise specified. The examiner indicated that the Veteran's stressors were financial problems and relationship difficulties. The examiner explained that, while the Veteran currently related multiple, severe combat stressors, the Veteran did not report any combat stressors during VA treatment from 1996 to 2009. The examiner noted that the record contained many prior reports suggestive of no PTSD and no report of combat or trauma going back to 1996. During this examination, the Veteran denied conflict in his home when growing up. The examiner noted that it was difficult to reconcile this report with the report he gave in 1996 during his mental health clinic consultation. The examiner noted that the Veteran related 13 stressor events. Some of the events were not experienced during service, such as seeing a drug shootout at work and seeing the body of his neighbor who had shot himself. Regarding one of the putative in-service stressors, the Veteran related that he was ordered to find mines with his feet by walking around. The examiner noted that this event was unlikely as the military has specially trained personnel to detect mines, and a serviceman would not be ordered to walk around a mine-infested area. Therefore, the examiner found that this alleged event did not meet the criteria for a diagnosis of PTSD. Regarding the remaining alleged in-service stressors, the examiner found that all of them were not related to hostile military or terrorist activity, and did not meet the criteria for a diagnosis of PTSD. The examiner also noted that, on his application for benefits in May 2002, the Veteran noted that his military duties consisted of unloading supplies and moving vehicles. The Veteran did not relate any security work, trauma exposure, or combat exposure at that time. The examiner noted that the June 2009 VA psychiatric testing scores were so high for a diagnosis of PTSD as to be uncommon even in psychiatrically-hospitalized patients. For example, the Veteran stated that he had nightmares every night because of all the killing and shooting while he was stationed in the Persian Gulf. However, the examiner noted the Veteran's previous statements that he did not participate in combat in service. The examiner noted that these scores can also represent malingering, or a cry for help. The examiner also noted that these psychiatric tests make it easy for the patient to understand the purpose of each question and which answers suggest distress. Upon review of the record, the Board finds that the most probative evidence of record is against the claim. The Board finds the January 2013 VA examiner's opinion that the Veteran does not meet the diagnostic criteria for PTSD to be of significant probative value, as the opinion was based on the examiner's medical expertise, a full clinical evaluation, a review of the claims file, and was supported by adequate rationale. Moreover, the examiner took into account the Veteran's prior mental health treatment, and the opinion is consistent with the other evidence of record showing that, while the Veteran has been noted to report in-service stressors causing symptoms of PTSD, prior to applying for service connection for PTSD he only related childhood, family and marital stressors. The examiner noted the inconsistencies in the Veteran's reports versus his previous statements and noted the questionable responses to psychological testing that served as a prior basis for a diagnosis of PTSD. Moreover, this opinion is consistent with the opinion of the May 2003 VA examiner. Accordingly, the Board assigns great weight to the opinion of the 2013 VA examiner. See 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."). Conversely, the Board accords little, if any probative weight to the diagnosis of PTSD rendered by Mountain Home VAMC clinicians in 2009, as such diagnosis was based on the Veteran's reported combat experiences in Desert Storm. However, the Board finds the assertions of combat are not credible. For example, after the Veteran began seeking compensation for psychiatric disorders, the Veteran has reported multiple, severe in-service stressors while stationed in Kuwait, during a period after hostilities ceased. Indeed, in 2009 he reported his service involved "so much killing and shooting." However, the Board notes that the Veteran did not report any service stressors during his 1990's VA psychiatric treatment, and only referred to one incident, his column of vehicles being fired upon once, on his May 2003 VA examination. In an August 2003 social worker general note, the Veteran denied any combat-related dreams and denied ever being in combat. He denied any specific stressors related to his Persian Gulf service. The foregoing inconsistent accounts provided by the Veteran relating to his stressors calls into question his overall credibility. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence); Caluza v. Brown, 7 Vet. App. 498, 511 (1995) ("The credibility of a witness can be impeached by a showing of interest, bias, inconsistent statements, or, to a certain extent, bad character."). Moreover, as the initial reports by the Veteran in 1996 prior to his 2002 depression claim were made in furtherance of treatment, they are accorded greater probative value than assertions made while seeking monetary gain. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed.Cir.2006) (Board can consider bias in lay evidence and conflicting statements of the veteran in weighing credibility). Additionally, the Board notes that both VA examiners appeared to question the reliability of the information being reported by the Veteran during the examinations, in light of the inconsistencies between those statements and those provided in other reports. In sum, the Board finds the Veteran's assertions as to being in combat and his other unverified stressors, are not credible. The Board acknowledges that JSRRC noted that a soldier was killed in a rollover vehicle accident, but did not confirm that the Veteran's commanding officer was charged with a cover-up. However, the VA examiner considered this stressor, but found the stressor was not sufficient to cause PTSD. As the diagnoses of PTSD in the medical evidence were based on unverified stressors to include his unsubstantiated and noncredible claim of participation in combat, they are afforded no probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that "an opinion based upon an inaccurate factual premise has no probative value"). To the extent that the Veteran and his family members believe that the Veteran suffers from PTSD as a result of military service, as lay persons, they have not shown that they have specialized training sufficient to render such a diagnosis. Accordingly, their opinions as to a diagnosis and/or etiology of PTSD are not competent medical evidence, as the diagnosis of psychiatric disorders requires medical expertise to determine. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Here, the most probative medical evidence demonstrates that the Veteran does not meet the diagnostic criteria for PTSD. The Board finds the opinion of the VA examiner to be of greater probative value than the lay contentions. For the reasons set forth above, the Board finds that the most probative evidence reveals that the Veteran does not suffer from PTSD as a result of military service, and the claim for service connection for PTSD is denied. In reaching the above conclusions, 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, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Service connection for PTSD is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs