Citation Nr: 1336870 Decision Date: 11/13/13 Archive Date: 11/26/13 DOCKET NO. 10-16 552 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include depression and posttraumatic stress disorder (PTSD). ATTORNEY FOR THE BOARD C. Fleming, Counsel INTRODUCTION The Veteran served on active duty from January 1966 to January 1968, including service within the Republic of Vietnam. This matter initially came before the Board of Veterans' Appeals on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. In that decision, the RO denied the Veteran's petition to reopen a previously denied claim for service connection for PTSD. The Board subsequently reopened the Veteran's claim and remanded the case on its merits in July 2012 for further notification, evidentiary development, and adjudication. The Board instructed the agency of original jurisdiction (AOJ) to provide the Veteran with Veterans Claims Assistance Act of 2000 (VCAA) notice, obtain up-to-date records from his VA treatment providers, and then re-adjudicate the claim. The AOJ provided the required notice via a letter in July 2012 and obtained the identified records. The Veteran was then provided a supplemental statement of the case (SSOC) in January 2013, in which the AOJ again denied the Veteran's service connection claim. Thus, there has been compliance with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). In this instance, the Board notes that the United States Court of Appeals for Veterans Claims (Court) has held that, although an appellant's claim identified posttraumatic stress disorder without more, it cannot be a claim limited only to that diagnosis, but must rather 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. The Court reasoned that the appellant did not file a claim to receive benefits only for a particular diagnosis, but for the affliction (symptoms) his mental condition, however described, causes him. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Here, although the Veteran filed his claim seeking service connection for PTSD specifically, the Board notes that the Veteran has been followed for and sought treatment for what has been characterized variously as PTSD and depression. The Board thus finds that, pursuant to Clemons, supra, the claim is more accurately classified as a claim for service connection for an acquired psychiatric disorder, to include depression and PTSD. See Clemons, 23 Vet. App. 1. FINDING OF FACT The Veteran does not have an acquired psychiatric disorder. CONCLUSION OF LAW The Veteran does not have an acquired psychiatric disorder that is the result of disease or injury incurred in or aggravated during active military service. 38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist At the outset, the Board will address the VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (2000), enacted in November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2013). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). In this case, the Board finds that all notification and development action needed to arrive at a decision has been accomplished. In this respect, through December 2008 and July 2012 notice letters, the Veteran received notice of the information and evidence needed to substantiate his claim. Thereafter, the Veteran was afforded the opportunity to respond. Hence, the Board finds that the Veteran has been afforded ample opportunity to submit information and/or evidence needed to substantiate his claim. The Board finds that the December 2008 and July 2012 notice letters satisfy the statutory and regulatory requirement that VA notify a claimant what evidence, if any, will be obtained by the claimant and what evidence, if any, will be retrieved by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). In the letters, the RO also notified the Veteran that VA was required to make reasonable efforts to obtain medical records, employment records, or records from other Federal agencies. The RO also requested that the Veteran identify any medical providers from whom he wanted the RO to obtain and consider evidence. Proper VCAA notice 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. See Pelegrini v. Principi, 18 Vet. App. 112, 121 (2004). See also Notice and Assistance Requirements and Technical Correction, 73 Fed. Reg. 23,353 (Apr. 30, 2008) (to be codified at 38 C.F.R. § 3.159) (removing the prior requirement that VA specifically ask the claimant to provide any pertinent evidence in his possession). These requirements were met by the aforementioned December 2008 and July 2012 letters. Further, the Veteran was provided notice regarding an award of an effective date and rating criteria in the December 2008 letter. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Nothing about the evidence or any response to the RO's notification suggests that the case must be re-adjudicated ab initio to satisfy the notice requirements of the VCAA. The Board also points out that there is no indication that any additional action is needed to comply with the duty to assist in connection with the claim on appeal. The Veteran's service treatment and personnel records have been associated with the claims file, as have records of post-service treatment from VA treatment providers. The Veteran also underwent VA examination in March 2011, the report of which is of record. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Here, the Board finds that the VA examination obtained in this case is adequate, as it is predicated on psychological examination as well as consideration of the medical records in the claims file and the Veteran's history. The examination report addresses all of the pertinent evidence of record, to include statements given by the Veteran at the time of the examination, and provides a complete rationale for the opinions stated. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). Additionally, the Veteran has submitted written argument in support of his claim. The Veteran has not alleged that there are any outstanding records relevant to the claim on appeal that need to be obtained. Under these circumstances, the Board finds that VA has complied with all duties to notify and assist required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159. II. Analysis Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in the line of duty or for aggravation of a pre-existing injury or disease in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, if a psychosis becomes manifest to a degree of 10 percent or more during the one-year period following a Veteran's separation from active service, the condition may be presumed to have been incurred in service, notwithstanding that there is no in-service record of the disorder. 38 U.S.C.A. §§ 1101, 1112 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.307, 3.309 (2013). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); 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. 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. See 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(f)(2). 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. See 38 C.F.R. § 3.304(f)(3) (2013); 75 Fed. Reg. 39,843-39,852 (July 13, 2010). The provisions of 38 C.F.R. § 4.125(a) require that a diagnosis of a mental disorder conform to the Diagnostic and Statistical Manual, Fourth Edition (DSM-IV). The Veteran asserts that he has an acquired psychiatric disorder, to include PTSD, that is related to his time in service. In particular, the Veteran stated in a January 2009 stressor statement that he developed psychiatric problems after seeing a soldier be killed when his grenade exploded while on guard duty. The Veteran also reported that he experienced enemy mortar and rocket attacks on multiple occasions while stationed in Vietnam and on one occasion feared that an exploding plane would land on him. His wife has also submitted statements indicating that the Veteran's psychiatric symptoms began after his return from Vietnam. Upon review of the evidence of record, the Board finds that the preponderance of the evidence is against a finding that the Veteran has an acquired psychiatric disorder, to include PTSD. In that connection, the Board notes, first, that the Veteran's service treatment records are silent as to any complaints or diagnoses of any psychiatric problems, and he was noted to have a normal psychiatric system at his January 1968 separation medical examination. Post-service treatment records reflect that the Veteran submitted a letter in July 2001 from a private internal medicine specialist who opined that the Veteran met the diagnostic criteria for both PTSD and depression related to service. The Veteran was seen by a VA provider in August 2008-prior to the filing of the instant claim-for what was diagnosed as a single episode of major depressive disorder. His treatment provider at the time noted that he was "coping with retirement." VA treatment records more recent than August 2008 reflect that he has not sought psychiatric treatment at any point following the single episode of major depressive disorder, although at an April 2010 primary care visit, a diagnosis of depression and anxiety was carried forward, and his medication was renewed. In March 2011, the Veteran underwent a VA examination concerning his claim for an acquired psychiatric disorder. At that time, the examiner conceded the Veteran's in-service stressors, noting that he had been stationed in combat zones in Vietnam, and acknowledged the August 2008 episode of major depressive disorder; however, the examiner found that Veteran presented no psychiatric symptoms at all. He found no clinical features of PTSD and "no evidence of acute, or chronic depression." The examiner found the Veteran to have no acquired psychiatric disorder at all and assigned no Axis I diagnosis. In this case, the evidence establishes that the Veteran has not been diagnosed as having any chronic acquired psychiatric disorder at any point during the appeal period. The Board finds that there is no evidence that the Veteran currently experiences any acquired psychiatric disorder that can be related to active service. In the absence of proof of a current acquired psychiatric disorder, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Congress has specifically limited entitlement to service connection to cases where such incidents have resulted in a disability. Brammer, 3 Vet. App. at 225. In the absence of any competent evidence of a current acquired psychiatric disorder, the Board must conclude the Veteran does not currently suffer from any such disabilities. Without competent evidence of a current acquired psychiatric disorder due to disease or injury, the Board must deny the Veteran's claim. See Degmetich v. Brown, 104 F.3d 1328, 1333 (1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). The Board has considered the Veteran's contention that he has an acquired psychiatric disorder that is related to service. In adjudicating this claim, the Board must assess the Veteran's competence and credibility. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368- 69 (2005). In Barr v. Nicholson, 21 Vet. App. 303 (2007), the Court emphasized that lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witness's personal knowledge. See also 38 C.F.R. § 3.159(a)(2) (competent lay evidence means 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 the facts or circumstances and conveys matters that can be observed and described by a lay person). In the instant case, the Board finds that the question of whether the Veteran has PTSD or any other acquired psychiatric disorder related to any incident(s) during his military service to be complex in nature. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Here, although the Veteran is competent to describe his experiences in service and his current symptoms, the Board accords his statements regarding the nature and etiology of his alleged disability of little probative value, as he is not competent to opine on such a complex medical question. Specifically, where the determinative issue is one of medical diagnosis or 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). The Veteran has offered only conclusory statements regarding the relationship between his in-service experiences and a claimed diagnosis of PTSD. In contrast, the VA examiner, who is a mental health professional, took into consideration all the relevant facts in providing his opinion, to include the Veteran's reported in-service stressors and the August 2008 psychiatric treatment. Therefore, the Board accords greater probative weight to the VA examiner's opinions rather than to the Veteran's statements on the matter. Here, the greater weight of the evidence points to the Veteran not having a diagnosed acquired psychiatric disorder. In that connection, the Board acknowledges that the Veteran was assigned a diagnosis of major depressive disorder in August 2008 by a VA psychiatrist, and of depression and anxiety in April 2010 by his VA primary care provider. The Board, however, finds compelling the conclusions of the March 2011 VA examiner, who considered the treatment records documenting these diagnoses, conducted a thorough psychiatric evaluation of the Veteran, and came to the conclusion that the Veteran does not in fact experience PTSD or any other acquired psychiatric disorder. The Board finds that this carefully considered opinion outweighs the assessment of depression assigned to the Veteran by his VA primary care provider in April 2010, which is unexplained in the record, is unaccompanied by any documented psychiatric complaints, and was not assigned by a psychiatric professional. Further, the Board acknowledges that the Veteran was diagnosed with major depressive disorder in August 2008 but notes that that diagnosis occurred prior to the December 2008 filing of the instant claim. Similarly, the July 2001 opinion from the Veteran's private internist was offered years before the filing of the instant claim. Thus, during the course of the appeal, the Board finds that the greater weight of the evidence supports a finding that the Veteran has not been diagnosed with any acquired psychiatric disorder during the pendency of the current appeal. See McClain v. Nicholson, 21 Vet. App. 319 (2007) (holding that a current disability exists if the diagnosed disability is present at the time of the claim or during the pendency of that claim). With regard to assessing the credibility and competency of the statements offered by the Veteran and his family members, while they are competent to describe his psychiatric symptoms (i.e., that is, symptoms capable of lay observation), diagnosing a psychiatric disorder is not something he has demonstrated that they have the medical expertise to do. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Moreover, as discussed, the March 2011 VA examiner found the Veteran not to experience any current acquired psychiatric disorder. The Board accepts the opinion of the VA examiner that the Veteran does not experience a current acquired psychiatric disorder as being the most probative medical evidence on the subject, as the opinion is based on a thorough review of all historical records and a thorough examination, and the report contains a detailed rationale for the examiner's conclusion that the Veteran does not have any current acquired psychiatric disorder. As discussed, the March 2011 examination report is negative for objective findings of any acquired psychiatric disorder. The Veteran's contentions of chronic disabilities are outweighed by the objective clinical findings and conclusions made by medical professionals. Absent a showing of psychiatric pathology, service connection for such disability cannot be granted. Thus, the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the claim of service connection for an acquired psychiatric disorder must be denied. See Gilbert v. Derwinski, 1 Vet. App 49 (1990). In reaching its conclusion, 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 of service connection for an acquired psychiatric disorder, that doctrine is not applicable. See 38 U.S.C.A § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for an acquired psychiatric disorder is denied. ____________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs