Citation Nr: 1336932	
Decision Date: 11/13/13    Archive Date: 11/26/13

DOCKET NO.  08-13 259	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin


THE ISSUE

Entitlement to service connection for posttraumatic stress disorder (PTSD).


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

B. Thomas Knope, Counsel


INTRODUCTION

The Veteran served on active duty from September 1963 to February 1965.  His military specialty was that of a bugler.  The current matter is on appeal from a May 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin.  In June 2007, the Veteran testified before a Decision Review Officer.  A transcript of the hearing is of record.

In December 2011, the Board issued a decision granting entitlement to service connection for depression but, in view of this grant, did not consider whether service connection was also warranted for PTSD.  See Clemons v. Shinseki, 23 Vet. App. 1 (2009).  The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court), which did not address the Board's grant of service connection for depression, but vacated the decision to the extent that it implicitly denied service connection PTSD, and remanded this issue for further development.  The issue was subsequently remanded by the Board in February and June 2013 for further development, and is now ready for disposition.  

This appeal was processed using the Veteran's Benefits Management System (VBMS). Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. In addition to the VBMS file, there is a Virtual VA paperless claims file associated with the claim.


FINDING OF FACT

At no time during the current appeal period has PTSD been shown.  


CONCLUSION OF LAW

PTSD was not incurred in, or aggravated by, active duty.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.304 (2013).

REASONS AND BASES FOR FINDING AND CONCLUSION

VA Duty to Notify and Assist

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 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).  Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability).  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included.  Id.

Here, neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required, and none is found by the Board. Shinseki v. Sanders, 556 U.S. 396 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  VA's duty to notify was satisfied by way of letters sent to the Veteran in January 2006 and June 2013 that fully addressed all notice elements.  These letters informed him of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence.  They provided him with notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date.  

While the Board recognizes that the June 2013 letter was not sent prior to the initial rating decision, the issue was subsequently adjudicated in an August 2013 supplemental statement of the case.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  The issuance of fully compliant notice, followed by readjudication of the claim, such as in a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect.  Prickett v. Nicholson, 20 Vet. App. 370 (2006).
Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b).  

Next, VA has a duty to assist a veteran in the development of the claim.  This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary.  See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). 

After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  First, the RO has obtained the Veteran's service treatment records and VA outpatient treatment records and records submitted in conjunction with a claim to the Social Security Administration (SSA).  Further, the Veteran submitted treatment records from a private facility as well as his own statements in support of his claim.  

VA examinations with respect to the issue on appeal were also obtained in April 2006 and July 2013.  38 C.F.R. § 3.159(c)(4).  To that end, when VA undertakes to provide a VA examination, it must ensure that the examination is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  As noted below, the Board finds that the VA examinations obtained in this case are more than adequate, they are predicated on a full understanding of the Veteran's medical history, and provide a sufficient evidentiary basis for the claim to be adjudicated.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met.  38 C.F.R. § 3.159(c)(4).  

Next, the Veteran was also afforded a hearing before a Decision Review Officer (DRO) in June 2007.  The hearing complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), which consist of (1) fully explaining the issue and (2) suggesting the submission of evidence that may have been overlooked.  Bryant v. Shinseki, 23 Vet. App. 488 (2010).  Notably, the Veteran was specifically asked about his stressor events as well as the psychiatric symptoms he experiences since that time.  

This appeal was remanded by the Board in February and June 2013 for further development. The Board instructed the RO in February 2013 to schedule the Veteran for a VA examination in order to determine whether he has PTSD that is due to any stated stressor.  The June 2013 Remand was necessary in order to ensure that the Veteran was properly notified of his scheduled VA examination.  

The Board is satisfied there was substantial compliance with these remands.  Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999).  The Veteran was provided a VA examination in July 2013, which the Board finds adequate for adjudication purposes.  After the required development was completed, this issue was readjudicated and the Veteran was sent a supplemental statement of the case in August 2013. The Remand directives were substantially complied with and, thus, there is no Stegall violation in this case.

Hence, no further notice or assistance 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 v. Principi, 16 Vet. App. 183 (2002).

Service Connection

Although the Veteran is already service-connected for depression, the purpose of this appeal is to determine whether he is also entitled to service connection for PTSD as a separate and distinct psychiatric disorder.  According to his statements at his hearing before a DRO in June 2007, he has experienced PTSD-type symptoms following a period where his unit was mobilized and bivouacked in an area where there were many poisonous snakes.  Since that time, he has been fearful of snakes and other reptiles.  He also reported participating in a musical performance for Governor George Wallace to which, as an African-American, the Veteran attributes lingering sentiments.  
Service connection for PTSD requires a medical diagnosis of 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. 38 C.F.R. § 3.304(f) (2013). A diagnosis of PTSD must meet the requirements of the American Psychiatric Association's Diagnostic and Statistical Manual on Mental Disorders, Fourth Edition (DSM-IV). 38 C.F.R. § 4.125(a) (2013).

Under DSM-IV, a valid diagnosis of PTSD requires that a person has been exposed to a traumatic event in which both of the following were present: (1) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of himself or others, and (2) the person's response involved intense fear, helplessness, or horror.

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)(1) (2013).

However, where VA determines that the Veteran did not engage in combat with the enemy or that the veteran engaged in combat with the enemy but the claimed stressor is unrelated to the combat, the veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor. Instead, the record must contain evidence that corroborates the Veteran's testimony as to the occurrence of the claimed stressor. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d), (f) (2013); West v. Brown, 7 Vet. App. 70 (1994).

The regulations regarding PTSD claims were also amended during the course of this appeal by liberalizing, in certain circumstances, the evidentiary standards for establishing the occurrence of an in-service stressor for non-combat veterans. See 75 Fed. Reg. 39,843-52 (effective July 13, 2010).  Under the amended regulation, the extensive development normally required to corroborate stressors asserted by non-combat veterans was not required where lay testimony alone to established the occurrence of certain in-service stressors involving "fear of hostile military or terrorist activity," so long as there was a diagnosis of PTSD by a VA psychiatrist or psychologist (or a psychiatrist or psychologist with whom VA has contracted) related to the fear of such activities. 38 C.F.R. §3.304(f)(3).

For purposes of the amended regulations, "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. 38 C.F.R. § 3.304(f)(3) (as amended in 75 Fed. Reg. 39,843-52).

In this case, service connection for PTSD is not warranted, as the Veteran does not have a valid diagnosis of this disorder.  In so concluding, the Board relies to the findings of VA examiners who evaluated the Veteran's psychiatric symptoms.  At the first, in April 2006, he stated that "if get stressed, I shut down; I feel that I'm not good enough, I'm not wanted, I'm not equal to no one."  He has also felt symptoms of depression over past episodes of perceived racism.  Such symptoms lasted approximately 1 to 2 days, but can be in remission for a number of days as well.  Notably, he did not mention any PTSD-type symptoms.  

The VA examiner noted that the Veteran has a significant history of both alcohol and cocaine abuse.  It was also noted that the Veteran appeared unable to hold regular employment due to his drug issues as well as some general irresponsibility.  Based on a review of the Veteran's medical history, the examiner diagnosed depressive disorder, not otherwise specified, along with cocaine and alcohol dependence.  No diagnosis of PTSD was rendered and, indeed, the Veteran did not assert any such symptoms.  
At his second VA examination in July 2013, which was more specifically directed toward any potential PTSD symptoms, the Veteran attributed his symptoms to a generalized phobia of snakes and reptiles that arose while participating at Camp Pickett, Virginia, where there were "100s of copperhead snakes."  However, after an examination of the Veteran and a review of the claims file, the VA examiner determined that the Veteran did not meet the DSM-IV criteria for a diagnosis of PTSD.  The examiner specifically noted that there was "insufficient evidence of behavioral and social changes, re-experiencing of traumatic event(s), avoidant behaviors and heightened physiological arousal" due to any event in military service.  Instead, the examiner diagnosed major depressive disorder.  

The Board is aware that the Veteran's outpatient treatment records indicate a diagnosis of PTSD on a large number of occasions from 2005 to 2013.  When presented with conflicting evidence, it is the Board's responsibility to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). While the Board may appropriately favor the opinion of one competent medical authority over another, it may not reject medical opinions based on its own medical judgment. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Colvin v. Derwinski, 1 Vet. App 171 (1991).

After a review of the evidence of record, the Board determines that the weight of the evidence is against the conclusion that the Veteran has a reliable diagnosis of PTSD. Specifically, while the Veteran was treated for what was then characterized as PTSD on many occasions, substantially all of those diagnoses did not appear to be based on any supporting rationale.  In fact, it appears on many occasions that the diagnosis of PTSD was provided simply because it had been diagnosed in the past.

Moreover, the characterization of the Veteran's PTSD during outpatient treatment has been very inconsistent.  For example, in September and October 2005, he denied any symptoms of PTSD. A PTSD screen in August 2006 was also negative.  Additionally, there were other occasions, such as in January 2007, where the Veteran displayed some PTSD-type symptoms but not meet the full criteria for a diagnosis of this disorder.  The evidence also contains a number of occasions where successive treatment notes are contradictory, such as two treatment notes in August 2011, where one noted a history of PTSD while the other stated that there was no evidence of PTSD.  

In contrast, the two VA examinations pertaining to this claim were extraordinarily thorough as to the reasons why a diagnosis of PTSD, as opposed to some other psychiatric disorder, was not warranted.  Moreover, the United States Court of Appeals for the Federal Circuit has recognized the unique probative value of opinions provided by VA psychiatric examiners in the context of PTSD examinations for a number of reasons: (1) VA practitioners are given specific instruction on how to conduct PTSD examinations, including guidance materials and a certification process. (2) The VA reviews the quality of its practitioners' examinations, including taking steps to address identifiable problems with feedback and training. (3) The VA provides VA associated practitioners with the veterans' claims folders in connection with all mental-disorder examinations, including PTSD examinations, who are instructed that a PTSD diagnosis cannot occur without a review of the folder. (4) The VA noted that limiting the rule to VA associated practitioners, accompanied by periodic review of these examinations, would ensure standardization and consistency.  Nat'l Org. of Veterans' Advocates, Inc. v. Sec. Of Veterans Affairs, 669 F.3d 1340 (Fed. Cir. 2012) (citing 75 Fed.Reg. 39,843, 39,847-48 (July 13, 2010)).

As a consequence, the Board finds that the opinions provided by the VA examiners outweigh the other evidence of record and concludes that PTSD is not the appropriate diagnosis in this case.  Moreover, service connection is not for application unless the evidence indicates that a current disability exists.  See 38 U.S.C.A. § 1110 (West 2002); Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability). "In the absence of proof of a present disability there can be no valid claim." See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).

In determining that the Veteran does not have a current diagnosis of PTSD, the Board acknowledges the holding of the Court in McClain v. Nicholson, 21 Vet. App. 319 (2007), where it stated that a disorder need only be manifest at some point during the pendency of that claim, even if no disability is present at the time of the claim adjudication.  However, McClain is not applicable here, as the current case is not a situation where the Veteran had a legitimate prior diagnosis that has since resolved.  Rather, the Board has determined that the weight of the clinical evidence is against the conclusion that he had ever received a probative diagnosis of PTSD. 

In this regard, the Board acknowledges that, in its June 2013 remand, the Board had asked the examiner who would be conducting the upcoming examination to opine as to whether the Veteran's reported stressor of feeling racially discriminated against in service was a sufficient stressor to have supported the notations made of PTSD at the various VA outpatient treatment sessions.  Significantly, according to the report of the July 2013 VA examination, the Veteran "did not mention racial discrimination as the source" of his purported PTSD.  Rather, the Veteran had reported that his in-service stressor was a "fear of copperhead snakes."  Further, the examiner opined that, because the Veteran was not bitten and was not in close proximity to the alleged snake pit in service, this alleged incident does not support a finding of PTSD.

Moreover, there is no evidence to suggest that the Veteran is a "combat veteran" for VA purposes and, being that his specialty was as a bugler, the Board cannot infer combat participation.  Moreover, his statements regarding his stressors have lacked specificity to the extent that that they would not have been able to be corroborated.  In addition, while the Veteran may have developed a fear of snakes from his claimed stressor incident, this would not represent a stressor related to fear of hostile military or terrorist activity as is contemplated under 38 C.F.R. § 3.304(f)(3) (2013).  Rather, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that fear of entities other than members of an enemy military or terrorists does not meet the requirements of this regulation.  Hall v. Shinseki, 717 F.3d 1369 (Fed. Cir 2013).  

When considering this claim, the Board has also considered the statements made by the Veteran regarding his psychiatric symptoms.  The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional."  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)).

In this case, however, the Veteran is not competent to provide testimony regarding the nature and etiology of his psychiatric disorder.  See Jandreau, 492 F.3d at 1377, n.4. Because psychiatric disorders are not diagnosed by unique and readily identifiable features, they do not involve a simple identification that a layperson is competent to make. Therefore, the unsubstantiated statements regarding the existence of etiology of the Veteran's claimed PTSD are found to lack competency.

In conclusion, the Board concludes that the Veteran does not have a viable and probative diagnosis of PTSD.  Any of the previously-noted findings of PTSD were not based on corroborated in-service stressors.  Therefore, service connection is not warranted for PTSD, and there is no doubt to be otherwise resolved.  As such, the appeal is denied.

ORDER

Service connection for PTSD is denied.  



____________________________________________
THERESA M. CATINO
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs