Citation Nr: 1335978 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 09-07 844 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for a psychiatric disability to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Robert W. Gillikin II, Attorney WITNESS AT HEARING ON APPEAL Veteran and J.W. ATTORNEY FOR THE BOARD B. Berry, Counsel INTRODUCTION The Veteran served on active duty from August 1969 to February 1974. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in January 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Veteran testified before the undersigned Veterans Law Judge at a travel Board hearing in February 2010. A transcript of the hearing has been associated with the claims file. The Board remanded these issues in November 2010 for proper notice and in March 2013 to provide the Veteran with another VA examination. The Appeals Management Center (AMC) continued the denial of the claims in the May 2012 supplemental statement of the case and returned these matters to the Board for further appellate consideration. The Board recharacterized the Veteran's service connection claim for PTSD as one for service connection for a psychiatric disorder in the November 2010 remand as the evidence of record indicated that the Veteran was diagnosed with other psychiatric disabilities in addition to PTSD. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (when a claimant identifies PTSD without more, it cannot be considered a claim limited only to that diagnosis, but rather must be considered a claim for any mental disability that may reasonably be encompassed by several factors including the claimant's description of the claim, the symptoms the claimant describes, and the information the claimant submits or that VA obtains in support of the claim). This is reflected in the title page above. FINDINGS OF FACT 1. The preponderance of the evidence shows that the Veteran's current diagnosis of PTSD is related to alleged in service personal assault/harassment stressors that are not supported by the evidence of record. 2. The preponderance of the evidence shows that an acquired psychiatric disability, other than PTSD did not have its onset during active military service, schizophrenia did not manifest to a compensable degree within one year of service and the Veteran's psychiatric disabilities other than PTSD are not related to active military service. CONCLUSIONS OF LAW 1. PTSD was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1154 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2013). 2. An acquired psychiatric disability, other than PTSD, was not was not incurred in or aggravated by active military service, nor may it be presumed to have been so incurred or aggravated.. 38 U.S.C.A. §§ 1110, 1112, 1154 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Notice and Assistance The United States Department of Veterans Affairs (VA) has a duty to notify and assist a claimant in developing a claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from 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 seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). With regard to claims for service connection for a disability, the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of the claim: (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 of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Thus, upon receipt of an application for a service-connection claim, VA must review the information and the evidence presented with the claim and provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application including notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. VA letters dated in September 2007 and November 2010 satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In this regard, the September 2007 letter advised the Veteran what information and evidence was needed to substantiate his service connection claim for PTSD. The November 2010 letter informed the Veteran that he may provide alternative supporting evidence with respect to his PTSD claim based on personal assault. The Veteran was notified in the September 2007 letter of how VA determines the disability rating and effective date if his claim is granted. The letter also informed the Veteran of his and VA's respective duties for obtaining evidence. The letter requested that he provide enough information for the RO to request records from any sources of information and evidence identified by the Veteran. The September 2007 letter satisfied most of the duty to notify provisions prior to the initial AOJ decision. However, the November 2010 letter satisfied the duty to notify provision with respect to the additional evidence that the Veteran may submit in support of a PTSD claim based on personal assault subsequent to the initial AOJ decision. The Board finds that this timing error was not prejudicial to the Veteran because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice. Not only has the Veteran been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond, but the AOJ also readjudicated the case by way of the supplemental statement of the case issued in July 2013 after the notice was provided. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). The Veteran will not be prejudiced by the Board proceeding to decide his claim, as the timing error did not affect the essential fairness of the adjudication. Regarding VA's duty to assist, the Board finds that VA has fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The claims file contains the Veteran's service treatment records, service personnel records, VA treatment records, private treatment records, a VA examination reports dated in April 2009 and June 2013, lay statements and a transcript of the February 2010 Board hearing. The April 2009 and June 2013 VA examination reports reflect that the examiners conducted a review of the Veteran's claims file in addition to obtaining an oral history from the Veteran and evaluating the Veteran with respect to a mental health disorder. The examiners discussed the relevant evidence of record and documented the results of the evaluation. Following the above, the examiners provided an explanation for their opinions based on the Veteran's lay statements, evidence of record and medical expertise. Accordingly, the Board finds the VA examinations are adequate for adjudication purposes. In addition, as noted in the Introduction, this issue was previously remanded in November 2010 to send proper notice for a PTSD claim based on personal assault and in March 2013 to obtain a VA examination. The claims file contains a letter dated in November 2010 that provides the Veteran with proper notice with respect to PTSD claims based on personal assault and a VA examination dated in June 2013 that adequately addresses the issues raised in the March 2013 Board remand. Accordingly, the Board finds that there has been substantial compliance with the November 2010 and March 2013 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran has not identified, and the record does not otherwise indicate, any existing, pertinent evidence that has not been obtained. The record also presents no basis for further development to create any additional evidence to be considered in connection with the matter currently under consideration. Under these circumstances, the Board finds that the Veteran is not prejudiced by appellate consideration of the claim on appeal at this juncture, without directing or accomplishing any additional notification and/or development action. II. Criteria and Analysis Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). ). In addition, service connection may be presumed for certain chronic diseases, such as schizophrenia, which is considered a psychosis, that are manifested to a compensable degree within one year after separation from service. 38 U.S.C.A. §§ 1101, 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2013). Pursuant to 38 C.F.R. § 3.303(b), a claimant may establish the second and third elements by demonstrating continuity of symptomatology for specific chronic disabilities listed in 38 C.F.R. § 3.309(a), which includes schizophrenia. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). PTSD The Veteran claims that he suffers from PTSD due to personal assault by his drill sergeant during active military service. Specifically, he asserted that the drill sergeant put his hands around his throat on several occasions, he was hit in the head with a garbage can, he was repeatedly punched in the stomach and he was locked in a closet with other soldiers while the drill sergeant poured a bottle of ammonia under the door. The drill sergeant also verbally abused the Veteran. The Veteran's attorney also indicated that the Veteran served in combat support operations with Task Force Delta in Nam Phong, Thailand from June 1972 to October 1972 and his PTSD is the result of fear of hostile military or terrorist activity. Service connection for PTSD requires medical evidence establishing a diagnosis of the disorder, credible supporting evidence that the claimed in-service stressor(s) occurred, and a link, established by medical evidence, between current symptomatology and the claimed in-service stressor(s). 38 C.F.R. § 3.304(f) (2013). With regard to the second PTSD element as set forth in 38 C.F.R. § 3.304(f), evidence of an in-service stressor, the evidence necessary to establish the claimed stressor varies depending on the circumstances of the stressor and the nature of a veteran's service. If the evidence establishes that a 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 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(f)(2). Additionally, if a stressor claimed by a veteran is related to the veteran's "fear of hostile military or terrorist activity" and a VA or VA-contracted psychiatrist or psychologist confirms that the claimed stressor is adequate to support a diagnosis of PTSD, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor so long as there is not 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. 38 C.F.R. § 3.304(f)(3). For purposes of this section, "fear 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,..., and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror." Id. As noted above, in order for the Veteran to be entitled to service connection for PTSD, the medical evidence must show a diagnosis of PTSD linked to an in-service stressor. A VA examination in June 2013 determined that the Veteran did not meet the criteria for PTSD. The examiner explained that the Veteran did not meet the DSM-IV stressor criteria or full symptom criteria. Many of the symptoms checked in the PTSD symptom checklist during the examination overlap with other mental health conditions and could easily be explained by those conditions. For example, his isolation, restricted affect and lack of activities are all common in those with depression, personality disorders, as well as, schizophrenia. Issues of sleep and concentration also are common in those conditions. Regarding hypervigilence, the Veteran reported that he has been on guard, weary and watchful even as a child; thus this would not likely be related to any alleged boot camp assault. Furthermore, the examiner noted that given his paranoid schizophrenia, this also likely contributes to his feelings of being unsafe, threatened or hypervigilent. However, VA treatment records dated in September 2009 and October 2009 show that the Veteran has a diagnosis of noncombat PTSD related to physical, emotional and sexual abuse. It is unclear in the records the specific stressors that resulted in the diagnosis of PTSD in the VA treatment records. A March 2010 VA treatment record shows that the Veteran has a diagnosis of noncombat PTSD with a history of physical, emotion, and sexual abuse as a child and in the military service. The March 2010 VA treatment record indicates that the diagnosis of PTSD is at least in part related the alleged personal assault during military service. Resolving any reasonable doubt in the Veteran's favor, the Veteran has a current diagnosis of PTSD related to an in-service stressor. With regard to the second PTSD element as set forth in 38 C.F.R. § 3.304(f), evidence of an in-service stressor, the Board notes that the diagnosis of PTSD is related only to the alleged in-service personal and emotional assault. Accordingly, there must credible supporting evidence of record that the alleged stressors actually occurred in order to warrant service connection for PTSD. The Veteran's claims file does not contain supporting evidence of the Veteran's claimed stressors of physical and emotional assault during boot camp. In this regard, the Veteran's service records do not indicate that the Veteran was physically assaulted or harassed during service. Furthermore, there was no indication in the service record that the Veteran reported being assaulted or emotionally abused during service. The Board notes that the record contains the lay statement of a service member dated in November 2010 that asserted that he was assaulted by drill instructors during training and it was a common practice at that time. The service member did not assert that he served with the Veteran and that he witnessed an instructor physically or emotionally abusing the Veteran or that the Veteran informed him around the time of the incident of the alleged assault. The Board finds that this lay statement does not corroborate that the Veteran was physically assaulted or emotionally abused during service. With respect to the disciplinary actions taken against the Veteran that was noted in the service personnel records, the VA examiner in June 2013 determined that this was not evidence of changed behavior following the alleged boot camp assault in 1969. He explained that such problems were well after the alleged assault/harassment by a drill instructor during basic training in 1969. The examiner concluded that given the four years between the alleged incident and such behaviors, it is less likely than not that the misbehavior represents any "markers" or signs of the alleged 1969 mistreatment. The examiner also determined that such behavior would be consistent with his personality style and history of substance abuse, neither of which was caused by military service. The only evidence substantiating that the Veteran experienced the in-service stressors is his own uncorroborated statements. However, as noted above, the Veteran's uncorroborated assertions are not sufficient to verify a non-combat stressor. See Cohen v. Brown, 10 Vet. App. 128, 138 (1997), and Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). The record must contain service records, lay statements, or other corroborative evidence, which substantiates or verifies the Veteran's testimony or statements as to the occurrence of the claimed stressors. Id. There is no credible supporting evidence from personnel records, lay statements from service members or others who witnessed the alleged incident or was contemporaneously informed of the alleged incident, or other corroborating evidence in the record to support the Veteran's contention that any of the claimed events occurred. As none of the Veteran's diagnoses of PTSD were based upon a verified in-service stressor, the claim of service connection for PTSD must be denied. Therefore, the Veteran's claim of entitlement to service connection for PTSD is not warranted. Other Acquired Psychiatric Disorders With respect to the Veteran's service connection claim for PTSD, VA treatment records also document that the Veteran has a diagnosis of schizophrenia, major depressive disorder, anxiety and a personality disorder. See Clemons, 23 Vet. App. at 5. Thus, the evidence of record shows that the Veteran has current diagnoses of acquired psychiatric disorders, other than PTSD. As an initial matter, congenital or developmental defects, which include personality disorders, are not "diseases" or "injuries" within the meaning of applicable legislation, and therefore service connection for them is generally precluded by regulation. 38 C.F.R. §§ 3.303(c), 4.9, 4.127 (2013). In addition, service connection may not be established as directly related to service for a disability deemed to be the result of abuse of alcohol or drugs. See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.1(n), 3.301 (2013). The Veteran's service treatment records are negative as to any suggestion of a psychiatric disorder to include schizophrenia, major depressive disorder, anxiety or a personality disorder. The February 1974 separation examination reveals that no psychiatric disabilities were present. The first medical evidence of a psychiatric disorder was in August 1980 when he was diagnosed with neurotic depression secondary to marital maladjustment, approximately 6 years after the Veteran left military service. Thus, the medical evidence of record reveals that the Veteran did not have a psychiatric disorder in service or schizophrenia within one year of service. The Board notes that the Veteran has indicated that his psychiatric symptoms had its onset between the age 17 and 19, which is around the time the Veteran entered active military service. See April 2009 VA treatment record. Regarding the Veteran's assertion that he has had a continuity of symptomatology of an acquired psychiatric disability since discharge from military service, the U.S. Court of Appeals for the Federal Circuit recently clarified that the continuity of symptomatology language in section 3.303(b) restricts itself to chronic diseases found in 38 C.F.R. § 3.309(a). Walker, 708 F.3d at 1331 (3.303(b) "is only available to establish service connection for the specific chronic diseases listed in § 3.309(a)"). The Veteran's diagnosis of a depressive disorder and anxiety are not listed as a chronic disease under section 3.309(a) and therefore, the Veteran may not establish continuity of symptomatology under 38 C.F.R. § 3.303(b) in lieu of medical nexus. With respect to the Veteran's current diagnosis of schizophrenia, psychosis is recognized as a chronic disease under section 3.309(a). Nonetheless, the Veteran's service treatment records do not document a diagnosis of schizophrenia during active military service. Furthermore, there is no competent medical evidence of record indicating that the Veteran's schizophrenia began during service or that any disciplinary actions against the Veteran during service was evidence of schizophrenia. The Federal Circuit held in Walker that section 3.303(b) only applies to a chronic disease as listed under section 3.309(a) that was shown in service. Walker, 708 F.3d at 1339. Thus, the Veteran may not establish continuity of symptomatology in lieu of medical nexus with respect to schizophrenia. Furthermore, there is no competent medical evidence of record that indicates the Veteran's schizophrenia, major depressive disorder and anxiety are etiologically related to active military service. The VA examiner in June 2009 noted that there was no documentation of any treatment for a mental health disorder. The Veteran's service personnel file contains a number of difficulties and the Veteran received a general under honorable discharge. Infractions include accusations of stealing gas, cursing or threatening a lieutenant and having unauthorized absences. The examiner determined that the disciplinary infractions do not suggest symptoms of depression or psychosis. Such difficulty with discipline infractions and obeying the rules would be more consistent with some of his other difficulties including substance abuse and/or antisocial personality. The examiner explained that he saw no evidence of schizophrenia or depression manifesting during the Veteran's time in the military. In addition, he noted that the Veteran appeared to not have received any mental health treatment until 1980 and at that point there was no psychosis involved. The treatment was primarily related to feelings of depression with suicidal thinking related to a marital breakup and job loss, which was associated with drinking and physical aggression towards his wife; which is consistent with his substance abuse and antisocial personality. The examiner did not specifically assert that the Veteran's current mental health disorders are less likely than not related to active military service; however, the examiner's statements suggest that the mental disorder are not related to service. Furthermore, a VA examination dated in June 2013 provided the opinion that there is no evidence to suggest that the Veteran's mental disorders are related to or caused by active military service. There was no evidence of mental health treatment or a diagnosis in the military. The behavior problems noted in the service personnel record are not necessarily diagnostic of paranoid schizophrenia or depression, but would be more consistent with substance abuse or antisocial personality style. The June 2013 examiner also noted that the Veteran made statements in the claims file that describe some of his experiences in service and the Veteran attributes all of his life problems to the reported assaults, mistreatment and harsh name calling. The examiner concluded that while it is possible that the Veteran believes such attributions, it is less likely than not such events from 43 years ago would have such significant and ongoing effects today. The examiner noted that the Veteran's statements also seem to ignore any of the significant effects of his other conditions on his life, such as the paranoid schizophrenia, personality disorder and the long history of polysubstance abuse/dependence, as well as, his life history of an abusive childhood growing up in a rough area and also post military assault by family a few years ago. The examiner also pointed out a number of inconsistencies in the Veteran's reports about events in his life. The Board finds that the June 2013 examiner's opinion is probative and persuasive as to the issue of whether the Veteran's psychiatric disorders other than PTSD are related to active military service. The examiner reviewed the claims file and provided a clear explanation for his opinion based on the evidence of record and clinical experiences. The Board observes that the Veteran asserts that he has a psychiatric disorder related to his active military service. Lay persons can provide an account of observable symptoms. See Clyburn v. West, 12 Vet. App. 296, 301 (1999); Caldwell v. Derwinski, 1 Vet. App. 466, 469 (1991). In this case, the diagnosis of a psychiatric disorder and the etiology thereof requires medical expertise. This disorder is simply not the type of disability for which lay evidence may be competent. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Veteran is not a licensed health care professional; therefore, the lay evidence offered by the Veteran is not competent medical evidence and does not prove a relationship between the Veteran's current psychiatric disability and his military service. Based on the foregoing, the Board finds that the preponderance of the evidence reveals that the Veteran's acquired psychiatric disabilities other than PTSD did not have their onset during active military service, schizophrenia did not manifest to a compensable degree within one year of service and the Veteran's psychiatric disabilities other than PTSD are not related to active military service. Therefore, a preponderance of the evidence is against the Veteran's claim of entitlement to service connection for an acquired psychiatric disability other than PTSD. ORDER Entitlement to service connection for PTSD is denied. Entitlement to service connection for an acquired psychiatric disorder, other than PTSD, is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs