Citation Nr: 1336192 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 04-42 418 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, claimed as posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for diabetes mellitus, type II, to include as secondary to an acquired psychiatric disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD W.H. Donnelly, Counsel INTRODUCTION The Veteran served on active duty with the United States Army from September 1973 to September 1975; he was additionally a member of the Alabama Army National Guard. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2004 rating decision by the Montgomery, Alabama, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which denied entitlement to the benefits sought. The Veteran testified at an October 2007 hearing held before the undersigned at the Board's Washington, DC, offices; a transcript of the hearing is associated with the claims file. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. The issue of service connection for diabetes mellitus, type II, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. There is no verified military stressor event. 2. There is no valid diagnosis of PTSD. 3. No currently diagnosed acquired psychiatric disorder was first manifested on active duty service or for many years after; the preponderance of the evidence is against a finding that any currently diagnosed mental disorder is related to military service. CONCLUSION OF LAW The criteria for service connection of an acquired psychiatric disorder, claimed as PTSD, are not met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326; Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). September 2003, January 2004, and October 2008 letters satisfied the duty to notify provisions fully with regard to PTSD and other acquired psychiatric conditions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The October 2008 letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran's Social Security Administration disability determination, and the records considered in that determination, are associated with the claims file. 38 C.F.R. § 3.159(c)(2). A VA examination was afforded the Veteran in July 2013. The examiner reviewed the claims file, made all required clinical findings, and offered the requested nexus opinion, along with supporting rationales. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The VA examination is adequate for adjudication. Although the Veteran has stated the examination does not reflect his actual condition, as he was having a bad day due to dialysis, such objection does not impact the basis of the examiner's nexus opinion and rationale. The severity of impairment is not at issue here. There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Analysis Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In order to establish service connection on a direct basis, the record must contain: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (conforming with the American Psychiatric Association 's Diagnostic and Statistical Manual of Mental Disorders (4th ed.)) (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). As the allegation is not related to combat or to fear of hostile enemy or terrorist action, evidence to corroborate the stressor allegation is required. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d), (f). If a PTSD claim is based on in-service personal assault, evidence from sources other than the Veteran's service records may corroborate the Veteran's account of the stressor incident. A medical opinion may also serve to corroborate the allegations, where an appropriate professional opines that the evidence indicates the assault occurred. 38 C.F.R. § 3.304(f)(5). The allegations of harassment are analyzed here as a personal assault. Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). See also Bostain v. West, 11 Vet. App. 124, 127 (1998). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The Veteran alleges that he suffers from PTSD as a result of harassment by a noncommissioned officer (NCO) while he was stationed in Okinawa, Japan. He does not allege any personal assault, though he has stated that he felt threatened by the First Sergeant in question. Unfortunately, the evidence of record fails to establish that the alleged stressor event actually occurred as described, and even if it did, it was not a "stressor" sufficient to support a diagnosis of PTSD. There is no evidence, other than the Veteran's assertion, that he was harassed by his First Sergeant in Okinawa. The buddy statement from [redacted] the Veteran has submitted states only that the sergeant used language regarding African American soldiers that the Veteran found offensive; "[the Veteran] would be very upset at times about working for First Sergeant." While the NCO presumably did use language which may have offended the Veteran, this is a far cry from the pattern of harassment and abuse the Veteran alleges. Other records, even the Veteran's accounts, tend to support this conclusion. Service personnel records show that he received good efficiency reports during this period. The Veteran does not allege nor do records show that he reported harassment to superiors. When a superior supposedly witnessed some harassment, but did nothing, this is consistent with the descriptions of the NCO given by Mr. [redacted]. Simply put, the behaviors actually shown attributable to the NCO do not match the Veteran's reports of them, or their impact on his life. Even if the offensive, racially based statements did have the effect of harassing the Veteran, the July 2013 VA examiner and a February 2007 treating doctor specifically found that such events did not rise to the level of a stressor for diagnostic purposes. There was no evidence of actual physical harm or threat thereof, as required for Criterion A under the DSM-IV. Therefore, there could be no valid diagnosis of PTSD. The Board is aware, as the examiner noted and the Veteran has reported, that other VA care providers have indicated a diagnosis of PTSD. However, these refer to the diagnosis as being by history, apparently reported by the Veteran, and do not reflect application of the required DSM-IV criteria. Many other providers indicate that no PTSD is present, although he Veteran has received services under some associated treatment programs. Those doctors who do note PTSD refer to "military experiences" as supporting a diagnosis, but fail to specify what such are. Trouble adjusting to Japan, with a new language and culture, was noted, as was the general experience of military indoctrination and daily life. Again, however, none would meet the Criterion A requirements for a stressor. The Veteran was offended, uncomfortable, and lonely, but was not in fear of harm. The Board therefore agrees with the July 2013 VA examiner, and with those providers repeatedly disputing the diagnosis, that PTSD is not present as a valid diagnosis at this time, or at any time during the appellate period. Instead, the Veteran is properly diagnosed with an adjustment disorder or depressive disorder. The Board has considered whether such are related to service in any way. However, as was noted by the July 2013 examiner and reflected in VA and private treatment records, service treatment records reflect no complaints of or treatment for any psychiatric problems, signs, or symptoms. The Veteran has repeatedly stated, and records corroborate, that he first sought treatment for and had problems with mental health in approximately 2001, after being charged with sexual harassment and fired from his job. Records at that time show him to be depressed. There is no reference to the military or the events alleged in service until mid-2003, when the Veteran complained generally of nightmares he could not remember. He was placed in a PTSD support group based on his symptoms, but the nurse running the group then removed him, stating that an actual diagnosis and not merely some symptoms, was required. The July 2013 VA examiner reviewed the claims file in its entirety, to include electronic records. He noted the above history, and repeated assessments and diagnoses of depressive disorders. Based on review of the file and his own examination and interview of the Veteran, depressive disorder NOS and a history of polysubstance abuse (reportedly in remission) were diagnosed. Because the first mental health problems arose in 2001 (well after service), and in light of the long history of substance abuse and physical health problems, it was less likely than not that the currently diagnosed mental health disorders were caused by or the result of military service. This is the sole competent and credible nexus opinion of record; no other doctor or medical professional has rendered one, and the Veteran's assertion of a nexus is neither competent or credible. First, although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the etiology of a psychiatric condition falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). He is not merely reporting a directly observed cause and effect relationship, Layno v. Brown, 6 Vet. App. 465 (1994); he is drawing conclusions based on evidence he is not sufficiently prepared to analyze. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Further, even if competent, the Veteran is not credible. When first seeking treatment his complaints and allegations of origin focused on his legal and work problems. It was not until he had associated with (and been removed from) a PTSD group that he first began alleging in-service stressors to support his apparent misdiagnosis with PTSD. He has repeatedly changed his allegations of stressors, from being exposed to the unknown in Japan, to being made a "killer" in basic training, to being harassed by an NCO. Most recently, on his examination, he never mentioned harassment. His inconstancy raises too many questions regarding his reliability and credibility for the Board to place much weight on his belief in a nexus. The Board is aware of the diagnosis of various substance abuse conditions. However, these are not considered service connectable, as they were habitual and recreational in nature. The Board notes the Veteran's allegation that he was "self medicating" a psychiatric condition, or dealing with the harassment in service he experienced. However, the record, to include his own statements, reflects that alcohol use began prior to entry into service, and use of drugs began on active duty. As the Board has found above that the "harassment" alleged did not take place as described, the drug use was not in response to events as alleged. The Veteran became and continued to be a recreational drug and alcohol abuser, and the effects thereof are not subject to service connection. 38 C.F.R. § 3.301. Therefore, the preponderance of the evidence is against the claim and service connection for an acquired psychiatric disorder is not warranted. ORDER Service connection for an acquired psychiatric disorder is denied. REMAND Although the Board regrets the additional delay, further remand is required with regard to the claim of service connection for diabetes. The Veteran alleges in part that currently diagnosed diabetes mellitus, type II, is caused by exposure to the herbicide Agent Orange while he was stationed on Okinawa. The Board notes that the Veteran did not serve in Vietnam or in Korea, nor has he alleged any travel to those areas. Exposure to herbicides is therefore not presumed based on the circumstances of his service. 38 C.F.R. § 3.307(a)(6); VA Adjudication Procedures Manual M21-1MR, IV.ii.2.C.10. The Veteran may still establish actual exposure, however, and thereby trigger the presumption of service connection. In support of his allegation the Veteran has submitted an article from the Marine Times dated in July 2007 which cites a 1998 Board decision determining that a service member credibly reported that he had assisted in the mixing, storage, and use of Agent Orange on Okinawa during the Vietnam War. In that case the serviceman reported that the herbicide was used for foliage control along the perimeters of the base camp. Initially, the Board notes that its own decisions are not precedential; the undersigned is in no way bound by the prior decision by another Veterans Law Judge. 38 C.F.R. § 20.1303. This case must stand on its own individual facts. Here, the Veteran has alleged no more than he was present on Okinawa, where he believes there is evidence of use of herbicides. When a Veteran alleges exposure to herbicides in an area outside of Vietnam or Korea, the VA Adjudication Procedures Manual M21-1MR, mandates specific development, none of which has taken place here. Accordingly, remand is required for VA to properly develop and investigate the Veteran's allegations. VA Adjudication Procedures Manual M21-1MR, IV.ii.2.C.10.o. Accordingly, the case is REMANDED for the following action: 1. Consistent with M21-1MR, IV.ii.2.C.10.o, contact the Veteran and ask his to provide details regarding the approximate dates, location, and nature of the alleged exposure to herbicides on Okinawa. Upon receipt of a response, investigate the allegations to the extent possible, as described in M21-1MR, IV.ii.2.C.10.o. 2. Review the claims file to ensure that all of the foregoing requested development is completed, and arrange for any additional development indicated. Then readjudicate the claim on appeal. If the benefit sought remains denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ____________________________________________ ROBERT E. P. JONES Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs