Citation Nr: 1336630 Decision Date: 11/12/13 Archive Date: 11/22/13 DOCKET NO. 09-10 188 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for an acquired psychiatric disorder other than depressive disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and Appellant's Wife ATTORNEY FOR THE BOARD Amanda Christensen, Associate Counsel INTRODUCTION The Veteran had active military service from March 1969 to November 1970. This appeal comes to the Board of Veterans' Appeals (Board) from a November 2007 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran provided sworn testimony in support of his appeal during a hearing before the undersigned Veterans Law Judge in July 2013; the hearing transcript has been associated with the file and has been reviewed. As an initial matter, the Board notes that in April 2012 the Veteran was granted service connection for depressive disorder secondary to his service-connected coronary artery disease. The Veteran did not appeal the April 2012 rating decision awarding service connection and granting a 30 percent rating effective March 16, 2012. Rather, he contended that he should be separately service-connected for PTSD. Although the Veteran argues the Board should consider whether he is entitled to an earlier effective date for service connection for depressive disorder under Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (holding that the scope of a psychiatric disability claim includes any psychiatric disability that may reasonably be encompassed by the Veteran's description of the claim, reported symptoms, and other information of record), the Board finds that the effective date issue is not before it. Of course, he is certainly free to claim for revision of the April 2012 decision if he feels there was clear and unmistakable error. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. FINDING OF FACT 1. The Veteran does not have PTSD diagnosed in accordance with DSM-IV. 2. The Veteran does not have an acquired psychiatric disorder, to include PTSD, that was incurred in or due to service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder other than depressive disorder, to include PTSD, have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 4.9 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303 (2013). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2013). Establishing service connection for PTSD requires specific findings. These are (1) a current medical diagnosis of PTSD; (2) credible supporting evidence that the claimed in- service stressor actually occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in- service stressor. See 38 C.F.R. § 3.304(f) (2013). The diagnosis of PTSD must comply with the criteria set forth in the Diagnostic and Statistical Manual of Mental Disorders, 4th edition, of the American Psychiatric Association (DSM-IV). Id.; see also 38 C.F.R. § 4.125(a) (2013). 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). See 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d) (pertaining to combat veterans); Gaines v. West, 11 Vet. App. 353 (1998) (Board must make a specific finding as to whether the veteran engaged in combat). The ordinary meaning of the phrase "engaged in combat with the enemy," as used in 38 U.S.C.A. § 1154(b), requires that a veteran have participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. VAOPGCPREC 12-99 (Oct. 18, 1999). Service in a combat zone does not establish that a veteran engaged in combat with the enemy. Id. Whether the veteran engaged in combat with the enemy is determined through the receipt of certain recognized military citations or other supportive evidence. West v. Brown, 7 Vet. App. 70 (1994). Previously, if VA determined either that the veteran did not engage in combat with the enemy or that the veteran did engage in combat, but that the alleged stressor was not combat related, the veteran's lay testimony, by itself, was not sufficient to establish the occurrence of the alleged stressor. Instead, the record had to contain credible supporting evidence that corroborates the veteran's testimony or statements. Cohen v. Brown, 10 Vet. App. 128, 147 (1997); Moreau v. Brown, 9 Vet. App. 389, 395 (1996). However, VA has amended its regulations governing service connection for PTSD by liberalizing the evidentiary standard for establishing the required in-service stressor when the stressor is related to "fear of hostile military or terrorist activity." Specifically, the amendment eliminates the requirement for corroborating evidence that the claimed in-service stressor occurred if the veteran experienced, witnessed, or was confronted by 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. 38 C.F.R. § 3.304(f) (2013). In addition, a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, must confirm that the claimed stressor is adequate to support a diagnosis of PTSD and that the veteran's symptoms are related to the claimed stressor. Id. Additionally, there must be in the record no clear and convincing evidence to the contrary, and the claimed stressor must be consistent with the places, types, and circumstances of the veteran's service. Id. In this case, the Veteran contends he is entitled to service connection for PTSD incurred as a result of his experiences in Vietnam. In an August 2006 stressor statement the Veteran described two incidents occurring in 1970. In one he reported almost being hit by friendly fire while under fire from the enemy. In a second incident he reported his unit was pinned down by the enemy and friendly fire from another unit injured and killed others. In a February 2009 statement he described being under attack by the enemy multiple times. VA treatment records show that the Veteran was first diagnosed with PTSD, mood disorder due to general medical condition, and depression in June 2005 after reporting nightmares, flashbacks, and bad dreams. He declined to elaborate on his experiences in Vietnam at that time and said his depression and anxiety had increased after a recent heart attack. VA treatment records show regular mental health treatment through 2013. Treatment records reflect that the Veteran reported symptoms including problems sleeping, worried/depressed/irritated mood, socially isolating himself, intrusive thoughts, and hypervigilance related to his combat experiences in Vietnam. As of May 2013 one of the Veteran's treating doctors who had previously assessed the Veteran with PTSD noted current diagnoses of only a mood disorder and depression, specifically noting in June 2013 that they were DSM-IV diagnoses. However, VA treatment records show the Veteran's psychologist and social worker have consistently listed a diagnosis of PTSD, without mention of the DSM-IV, throughout the Veteran's treatment. The Veteran was afforded a VA examination in March 2012. The examiner diagnosed depressive disorder but found that the Veteran did not have PTSD based on the DSM-IV criteria. The examiner stated that the Veteran's responses on the Trauma Symptoms Inventory showed an over-endorsing of symptoms and an endorsement of symptoms not typical to PTSD. The examiner stated that his response pattern was suggestive of exaggeration or feigning of symptoms. The examiner concluded that there is no objective evidence to support the symptoms or diagnosis of PTSD based on his test results and diagnostic clinical interview. The examiner stated that the Veteran's diagnosis of PTSD through the VA mental health clinic was based on the Veteran's subjective report of symptoms with no use of objective measures to validate it as the appropriate diagnosis. The examiner did find the Veteran has depressive disorder with his mood symptoms, including depression and sleep problems, likely related to his heart attack. The examiner opined that the Veteran's problems with depression are not caused by or related to his service. Thus, the VA examiner's opinion that the Veteran does not have PTSD conflicts with the diagnosis of PTSD the Veteran was given dating back to 2005 in his treatment at the VA mental health clinic. The Board ultimately finds the VA examination is entitled to greater probative weight. The Board acknowledges that if a veteran has received a diagnosis of PTSD from a competent medical professional, VA must assume that the diagnosis was made in accordance with the appropriate psychiatric criteria in regard to the adequacy of the symptomatology and the sufficiency of the stressor. Cohen v. Brown, 10 Vet. App. 128, 153 (1997). Although the PTSD diagnosis given the Veteran at the VA mental health clinic was rendered by medical professionals, the Board finds that the assessment was not in accordance with the DSM-IV criteria, and therefore, is of little probative value. While the Veteran's treatment records generally reference the Veteran's self-report of the existence of PTSD symptoms and combat experience in Vietnam, there is no specific discussion of the DSM-IV criteria. There is also no evidence quantitative psychometric assessments were given to the Veteran. None of the records explain how each of the DSM-IV PTSD diagnostic criteria were met. Accordingly, the Board does not presume that the PTSD diagnosis was made in accordance with DSM-IV. Thus, the Board assigns minimal probative weight to the PTSD diagnosis in the Veteran's VA mental health clinic records. The Board gives greater probative weight to the March 2012 VA examination as the examiner administered objective testing, conducted a diagnostic clinical interview, and specifically considered the DSM-IV criteria. The examiner opined not only that the Veteran did not at that time meet the criteria for PTSD but that based on a review of his VA treatment records, his previous diagnosis of PTSD at the VA mental health clinic was not supported by objective data. To the extent that the Veteran has himself opined that he has PTSD, the Board finds that the Veteran's opinion is not competent. While the Veteran is competent to state what symptoms he feels, diagnosing PTSD is a complex medical question not capable of lay observation and not the type of medical issue for which a lay opinion may be accepted as competent evidence. As a lay person, the Veteran does not have the education, training and experience to offer a medical diagnosis or an opinion as to the onset or etiology of his mental health condition. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Accordingly, the Veteran's lay statements in this regard are not competent or probative evidence supporting his claim. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau, 492 F.3d at 1376-77. The Board thus finds that a preponderance of the evidence does not support that the Veteran has PTSD diagnosed in compliance with the criteria set forth in the DSM-IV. Noting that the Veteran is already service-connected for depressive disorder, the Board further finds that the evidence does not show that the Veteran has any other acquired psychiatric disorder that was incurred in or due to his service. As the preponderance of the evidence is against this claim, the benefit of the doubt doctrine does not apply, and the 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). Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 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)(1). Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: 1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and 2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case). See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in July 2006. In the letter, the RO informed the Veteran of what evidence was required to substantiate the claim for service connection and of the Veteran's and VA's respective duties for obtaining evidence. In the letter the RO also provided notice with regard to how VA assigns disability ratings and effective dates in the event that service connection is established. Thus, the duty to notify has been satisfied. Also, in Bryant v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties to comply with the regulation. They consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In this case, during the July 2013 Board personal hearing, the VLJ fully explained the issue on appeal. The Veteran was assisted at the hearing by an accredited representative from the Disabled American Veterans, and the VLJ and the representative asked questions regarding the nature and etiology of the Veteran's claimed PTSD. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims file that might have been overlooked or was outstanding that might substantiate the claim, and specifically inquired as to recent VA treatment records. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and that any error in notice provided during the Veteran's hearing constitutes harmless error. VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). The Board finds that all necessary development has been accomplished. The RO has obtained the Veteran's service treatment records and VA treatment records. Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. The Veteran was afforded a VA medical examination in March 2012. The examiner, a medical professional, obtained an accurate history and listened to the Veteran's assertions. Thus, the Board finds that the examination is adequate and contains sufficient information to decide the issues on appeal. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio, 16 Vet. App. 183. ORDER Service connection for an acquired psychiatric disorder, other than depressive disorder, to include PTSD is denied. ____________________________________________ M. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs