Citation Nr: 1336162 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 07-37 585 ) 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, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Erdheim, Counsel INTRODUCTION The Veteran served on active duty from September 1966 to September 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, that denied the above claim. In April 2010, the Veteran was scheduled for a travel board hearing before the Board. However, he failed to appear. The Board remanded the claim in May 2011 and January 2013 for additional development. FINDINGS OF FACT 1. The Veteran's depression has been aggravated by his service-connected diabetes mellitus and Parkinson's disease. 2. The Veteran does not have PTSD that is related to active duty. CONCLUSIONS OF LAW 1. Depression was caused or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1110, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. § 3.310 (2006); 38 C.F.R. §§ 3.303, 3.310 (2013). 2. PTSD was not incurred in or aggravated by the Veteran's active service. 38 U.S.C.A. §§ 1110, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.304(f), 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the instant case, with respect to the Veteran's claims for service connection for PTSD and for a psychiatric disorder other than depression, the Board finds that VA has satisfied its duty to notify through September 2006, November 2006, and June 2007 letters. The claim was then adjudicated in May 2007, and most recently in an June 2013 supplemental statement of the case. Mayfield, 444 F. 3d at 1333-34. Relevant to the duty to assist, the Veteran's service treatment records, VA treatment records, and private records have been obtained and considered. The Veteran has not identified any additional, outstanding records necessary to decide his pending appeal. The Board has reviewed the Veteran's paperless Virtual VA and VBMS file claims file. Additionally, the Veteran was afforded VA examinations in February 2003, February 2007, April 2007, October 2008, June 2011, and March 2013, in order to adjudicate her service connection claim. Those examinations, in whole, addressed the etiology of the Veteran's current psychiatric disorder. The Board finds that the proffered opinions were based on current or past interviews with the Veteran and review of the record, including multiple physical examinations. From these examinations, clear conclusions with reasoned medical explanations were reached and are sufficient to decide the Veteran's claim. Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of her claim. II. Analysis The Veteran contends that he currently suffers from PTSD due to stressors in service, or that he currently suffers from another psychiatric disorder, to include depression, due to his service or his service-connected disabilities. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may be granted with medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307, (ii) present manifestations of the same chronic disease, and (iii) evidence of continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Such includes psychosis, but not PTSD, depression, or alcohol dependence. Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases to a degree of 10 percent within one year from the date of termination of such service, including psychosis, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (i.e., under the criteria of DSM-IV); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f) (2013). During the course of the appeal, VA amended its regulations governing service connection for PTSD by relaxing, in certain circumstances, the evidentiary standard for establishing in-service stressors. 75 Fed. Reg. 39843 (July 13, 2010). The amendments, which took effect July 13, 2010, state that 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. For purposes of this paragraph, "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, 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. Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a) . Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). During the course of this appeal, VA amended 38 C.F.R. § 3.310 effective October 10, 2006, to implement the decision in Allen. See 71 Fed. Reg. 52,744 -47 (Sept. 7, 2006). The amended 38 C.F.R. § 3.310 (b) institutes additional evidentiary requirements and hurdles that must be satisfied before aggravation may be conceded and service connection granted. To whatever extent the revised regulation may be more restrictive than the previous one, the Board will afford the Veteran review under both the old and new versions. See VAOPGCPREC 7-2003 (Nov. 19, 2003). First, the Board finds that service connection for depression is warranted on a secondary basis under the previous version of 38 C.F.R. § 3.310. In that regard, on March 2013 VA examination, it was noted that the Veteran was bedridden due to his service-connected disabilities, including Parkinson's disease, and thus a review of the record was indicated, only. From that review, the examiner determined that the Veteran's current psychiatric disorder was depression, in remission. The examiner concluded that the Veteran's current psychiatric disorder was at least as likely as not caused or aggravated by his service-connected diabetes and accompanying neuropathy and his Parkinson's disease. The examiner explained that it was likely that the Veteran's physical disabilities may have caused his recent depressive symptoms not accounted for in his previous history of an alcohol induced mood disorder. The Board finds that the March 2013 VA opinion is probative and persuasive in this case because it is well-explained and comports with the record. In that regard, the Veteran has been treated for depression for a majority of the appeal period. For instance, on February 2003 VA examination, he was diagnosed with chronic depression with variable remissions and relapses, currently in good remission with antidepressant medication. It was noted that he suffered from diabetes mellitus. In August 2006, his employer stated that he could no longer work due to his increasing health problems. An October 2006 VA treatment record documents that the Veteran suffered from multiple psychosocial issues including depression, alcohol abuse, and job loss, that was complicated by his treatment for diabetes and hyperlipidemia. A January 2007 VA examination demonstrated that the Veteran suffered from uncontrolled diabetes with resultant neuropathy. On February 2007 VA examination, one of the Veteran's diagnosis was dysthymic disorder. Records in 2010 and 2011 show an ongoing diagnosis of depression. In light of the above-recited evidence, as well as the probative 2013 VA opinion, the Board finds that service connection for depression as secondary to, caused or aggravated by, his service-connected diabetes and Parkinson's disease, is warranted. To that extent, the record demonstrates an ongoing diagnosis of depression, a worsening of his service-connected disabilities leaving him bedridden, and a positive nexus relating his depression to the worsening of those service-connected disabilities. However, with regard to the Veteran's claim for service connection for PTSD, the Board finds that the Veteran has not been diagnosed with PTSD based upon a stressor related to his service. In that regard, he does not appear to have a confirmed diagnosis of PTSD at any time during the appeal period. In July 2004, it was noted that he reported some symptoms of PTSD upon returning from Vietnam, but did not display PTSD symptoms presently. Rather, he had a history of depression in remission for many years, as well as cocaine and alcohol dependence. An April 2006 VA record states that he appeared to be experiencing subclinical symptoms of PTSD, but likely met the criteria for an anxiety disorder. On February 2007 VA examination, it was noted that there was no indication of a previous PTSD diagnosis. He reported having suffered from PTSD symptoms upon returning home from Vietnam, and that he currently had nightmares one or two times per month and became upset at watching combat movies. He was vague in his PTSD symptoms. Following mental status examination and interview, the examiner determined that the Veteran did not meet the criteria for a diagnosis of PTSD. His symptoms were too vague and fit better within a diagnosis of substance abuse and antisocial personality disorder. In November 2007, it was again noted that although he displayed some symptoms of PTSD, referral for a PTSD program was not indicated. The Board notes that a May 2008 Social Security Administration record concludes that the Veteran was experiencing significant physical problems, and suffered from both PTSD and depression. However, the basis for that conclusion was not provided. The Board also notes that in October 2008, a physical examination to determine whether the Veteran met the criteria for a TDIU resulted in a diagnosis of PTSD. However, that diagnosis was not based upon a mental status examination, and the conclusion for the diagnosis was not provided. Rather, it was stated to have been previously provided on mental health VA examination. On June 2011 VA examination, the examiner determined that the Veteran did not meet the DSM-IV criteria for a diagnosis of PTSD. Specifically, he did not meet Criterion E and F for such a diagnosis, a conclusion reached after mental status evaluation and interview, and review of the record. Thus, in this case, the Board finds that at no time during the appeal period has the Veteran been diagnosed with PTSD according to the DSM-IV. Rather, on repeat VA examination, no diagnosis of PTSD was found. The two diagnoses of record are based upon either the Veteran's self-report or an incorrect factual premise, such as on October 2008 TDIU examination. Although the examiner stated that the Veteran was previously diagnosed with PTSD on VA examination, such was not the case. And, with regard to the May 2008 diagnosis, no rationale was provided. Accordingly, the Board finds those two diagnoses to hold no probative value. Instead, the multiple VA examinations, and especially the June 2011 VA examination that clearly delineates the Veteran's symptom presentation, are probative and persuasive evidence against the claim. Therefore, despite the validity of the Veteran's reported service stressors, the preponderance of the evidence is against a finding that he currently, or at any time during the appeal period, has suffered from PTSD, and service connection for PTSD must be denied. Additionally, the Board finds that there are no other psychiatric disorders that have been medically linked to service or to a service-connected disability. The Veteran's substance abuse, in remission, and other recorded diagnoses, to include a personality disorder, have not been linked to service or a service-connected disability. Significantly, the Veteran has not contended the those disorders were caused or aggravated by his service or a service-connected disability. Rather, his statements have focused on his depression and his PTSD, which have been analyzed above. While the Veteran contends that his PTSD was caused or aggravated by his service, the Board accords his statements regarding the etiology of this disorder less probative value as he is not competent to opine on such a complex medical question. It is true that lay evidence may be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. West, 12 Vet. App. 460, 465 (1999). While the Veteran is competent to state his symptoms and in-service stressors, he is not competent to state that he meets the criteria for a diagnosis of PTSD based upon those stressors, as he does not have the requisite knowledge and skills to determine such etiology. Such a conclusion requires medical skill and review of the mental health findings in service and since service. As the Board finds that the preponderance of the evidence is against the claim for service connection for PTSD, the benefit of the doubt doctrine is not for application. However, service connection for depression as secondary to the service-connected diabetes mellitus and Parkinson's disease, is granted. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107. (CONTINUED ON NEXT PAGE) ORDER Service connection for depression, as secondary to service-connected diabetes mellitus and Parkinson's disease, is granted. Service connection for PTSD is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs