Citation Nr: 1337024 Decision Date: 11/14/13 Archive Date: 11/26/13 DOCKET NO. 13-22 958 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for an acquired psychiatric disorder other than PTSD. ATTORNEY FOR THE BOARD C. Boyd, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1958 to January 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2010 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran seeks service connection for PTSD. The Board notes, however, that the evidence of record reflects that the Veteran has been diagnosed with an anxiety disorder not otherwise specified (NOS) as well as depressive disorder NOS. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims held that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's reported symptoms and other information of record, i.e., that matters of service connection for diagnosed psychiatric disabilities other than PTSD are part and parcel of a service connection for PTSD claim. Given that there is enough evidence of record for the Board to decide the claim as to PTSD, but a remand is necessary for consideration of any other psychiatric disorders the Veteran may have, the Board has added an additional issue as shown on the cover page. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of entitlement to service connection for an acquired psychiatric disorder other than PTSD 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. The Veteran does not meet the diagnostic criteria for a diagnosis of PTSD. 2. There is no credible supporting evidence that a PTSD stressor occurred as alleged. CONCLUSION OF LAW The criteria for establishing service connection for PTSD have not been met. 38 U.S.C.A. §§ 1101, 1110, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative 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). The 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. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, in a March 2010 pre-adjudication letter, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate a claim for service connection, including what he needed to provide and what would be obtained by VA. The record also reflects that VA has made reasonable efforts to obtain all relevant records pertinent to the matter on appeal, including the Veteran's service treatment records, private treatment records and military personnel records. The VA also requested command histories and deck logs for the naval ship on which the Veteran served. The Veteran has not identified any outstanding evidence. Finally, an appropriate VA examination was conducted in connection with the claim. The VA psychologist who conducted the October 2010 examination had access to and reviewed all the evidence in the claims file, recorded the Veteran's subjective complaints, and provided an opinion regarding whether the Veteran has PTSD related to an alleged in-service stressor in accordance with the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). The etiology opinion was supported by an adequate rationale. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that a medical opinion is adequate only if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). The Board finds that no additional RO action to further develop the record in connection with the Veteran's claim, prior to appellate consideration, is warranted. The Veteran was provided the opportunity to meaningfully participate in the adjudication of his claims and did in fact participate. Washington v. Nicholson, 21 Vet. App. 191 (2007). Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. II. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110. 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). To establish service connection for a disability resulting from a disease or injury incurred in service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection for PTSD requires (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), i.e., the diagnosis must conform to the Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV) and must be supported by findings on the examination report; (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. §§ 3.304(f), 4.125(a). The evidence necessary to establish the occurrence of a stressor during service to support a diagnosis of PTSD will vary depending upon whether the veteran engaged in "combat with the enemy" or was a prisoner of war (POW) as established by official records, including recognized military combat citations or other supportive evidence. If VA determines that the veteran engaged in combat with the enemy or was a POW and the alleged stressor is combat or POW related, then the veteran's lay testimony or statement is accepted as conclusive evidence of the stressor's occurrence and no further development or corroborative evidence is required, provided that such testimony is found to be "satisfactory," i.e., credible and "consistent with the circumstances, conditions or hardships of service." 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(f); Dizoglio v. Brown, 9 Vet. App. 163 (1996); West v. Brown, 7 Vet. App. 70 (1994); Zarycki v. Brown, 6 Vet. App. 91 (1993). If, however, VA determines that the veteran did not engage in combat with the enemy or was not a POW, the veteran's lay testimony by itself, is insufficient to establish the occurrence of the alleged stressor. Instead, the record must contain credible supporting evidence that corroborates the veteran's statements or testimony. Cohen v. Brown, 10 Vet. App. 128 (1997). Here, there is no evidence or allegation that the Veteran served in combat or that he was a POW so credible supporting evidence corroborating the Veteran's statements must appear in the record. As to an alleged stressor, in an April 2010 Statement in Support of Claim, the Veteran related that he served on the U.S.S. Independence and there were often fights onboard over unfair food rations. He stated that on May 5, 1959, the crew was allowed to disembark in Guantanamo Bay, Cuba and the fights between sailors continued. He stated: "In fact, 2 snips (sailors that work below deck) were tied to a tree and stoned to death by the sailors that work on the flight deck." He related that on the ship, there were fights with marines and several additional deaths, specifically, a "lift came loose and almost killed several men"; "one man was killed on one of the elevators"; and two men were killed trying to get airborn" on catapults and "the ship ran over them." The history for the U.S.S. Independence received from the Defense Personnel Records Information Retrieval System indicates that the ship departed for shakedown deployment to the Caribbean area of operations on April 15, 1959 and returned to Norfolk, Virginia on June 30, 1959. The deaths described by the Veteran were not mentioned in the ship's history. The deck logs for May 1-31, 1959 were also reviewed. The deck logs revealed that on May 5, 1959 a fireman was injured in a fight ashore by an unidentified assailant and died the following day and that a Crusader crashed into the sea off the starboard side of the ship on May 8, 1959 and sank in 1,200 fathoms of water off Cuba. The pilot was presumed dead. No other deaths were noted within that period. As to a diagnosis of PTSD, the Veteran's service treatment records are unremarkable for complaints, diagnosis, or treatment of a psychiatric disorder, to include PTSD. No treatment for psychological issues was sought prior to February 2010. In February 2010, the Veteran was evaluated by Dr. W.A., a licensed psychologist. The Veteran denied having medical conditions originating during his period of service. He reported that he was a boiler tender and served in the engineering log room on the U.S.S. Independence during its shakedown mission in 1958 - 1959. He described feeling that he was helpless to intervene when he witnessed the deaths of two brothers who were tied to a tree and stoned to death by sailors who worked on the flight deck. He also reported that he was involved in fight with Marine Corps soldiers that ultimately led to "mutiny on the ship which shut down the ship." He stated that "people got killed" due to the steam having been "turned down" as planes were attempting to take off, resulting in the deaths of two men when the "ship ran over them." He additionally stated he witnessed "a guy's legs cut in two" by the cable utilized to aid with plane landings. As to his psychological symptoms, the examiner considered the DSM-IV criteria. The Veteran described experiencing "recurrent intrusive thoughts related to his inability to stop the killing of the twins, age nineteen . . ." He estimated that memories of his experiences on the U.S.S. Independence surfaced "several times a month." He described flashbacks and a history of nightmares, although he stated they had not occurred recently. He described a history of "intensive effort" geared toward avoidance of thoughts or feelings related to his "traumatic experiences." He reported that he had a lessening of interest in activities such as boat racing, hunting and fishing, all of which he enjoyed prior to entering the service. Feelings of detachment and estrangement were reported as well as a restricted range of affect. He stated he tended to "make it day by day." The examiner noted problems with insomnia, concentration, hypervigilance and exaggerated startle responses. The Veteran stated he was in a "very irritated" mood most of the day, nearly every day. He reported fatigue and loss of energy and described feelings of worthlessness and guilt. When asked the history and duration of his psychological symptoms, he reported they were "intermittent" and he was "uncertain of the specific situational triggers which induced the symptoms" and that his depressive symptoms had likely been evident since 1996, when he suffered a heart attack. Throughout the interview, the Veteran was pleasant and cooperative. His speech was normal in terms of manner and content. Suicidal or homicidal thoughts were denied. The examiner determined the Veteran was oriented to person, place and time. His memory and concentration fell within normal limits. His judgment and insight, in contrast, "fell below normal limits." Prior history of psychological evaluations or counseling, drug abuse or alcohol abuse was also denied. The examiner administered the Personality Assessment Inventory and concluded that the Veteran might be "intentionally" presenting himself "in an overly negative manner." She explained that similar profilers tended to report problems with drugs and alcohol and often experience "marked difficulties with concentration and a fear of losing control of their thoughts." Many of these people have difficulty coping with daily life and have the perception that their lives are no longer worth living. She went on to describe other symptoms the Veteran did not attest to in his interview. The examiner diagnosed the Veteran with PTSD and Depressive Disorder NOS. She assigned a GAF score of 57, indicating the presence of moderate symptoms or moderate difficulties in social, occupational or school functioning. In regard to the GAF score, she stated that "some troubles with irritability were acknowledged, and considerable situational stress, particularly given his wife's health problems, was evident." The examiner concluded that "symptoms of [PTSD] were, based on symptom content, as likely as not induced by events that took place during [the Veteran's] military service." In October 2010, the Veteran underwent an examination with a VA psychologist. The examiner noted there were symptoms of a mental disorder, but the Veteran was not currently seeking treatment. The examiner noted that when asked if he experienced depression or anxiety, the Veteran stated: "I don't think so, but my wife thinks so...She says I get irritated easily, which I don't believe I do." The Veteran denied drug or alcohol abuse. He stated he did not have combat experience and had no disciplinary infractions or adjustment problems while in the military. He denied experience of or treatment for mental health problems during service. The examiner noted there were no problems with the activities of daily living. The Veteran related that he has 5 or 6 friends, walks 3-4 miles a day, does yard work, takes care of a dog, rides a motorcycle, does puzzles, takes a cruise once or twice a year and watches sports on television. The examiner reported the Veteran was clean, neatly groomed, appropriately dressed, that his speech was unremarkable, spontaneous, clear and coherent, and that his attitude was friendly and attentive. In regard to his experiences in the military, the Veteran stated that he experienced intense fear and feelings of horror on the U.S.S. Independence shakedown cruise to Guantanamo Bay in 1959. The Veteran stated he witnessed two crew members tied to a tree and stoned to death. He noted they were twins, but he could not remember their names. The examiner noted that there was no evidence in the claims file indicating that two brothers died at that time. The Veteran also related an incident on the ship when sailors threw an Air Force Pilot overboard. Again, the examiner stated there was no evidence of this in the Veteran's military records. The Veteran also related there were always fights in the "chow hall" because servicemen were served different meals based on their groups. He reported he witnessing two planes take off with insufficient power and fall into the sea. He stated that he "cut a guy down one time that hung himself," although he could not recall the sailor's name. PTSD symptoms were noted. The Veteran stated that he had recurrent and intrusive distressing recollections of the events and made efforts to avoid thoughts or feelings associated with them. He reported difficulty concentrating and hypervigilance. He stated he had intrusive memories that occurred "at least once a week." He reported that their severity was "mild." He explained he had nightmares from one night a week to nightly. He did not endorse flashbacks or physical reactions associated with memories of the events. He denied suicidal or homicidal thoughts or panic attacks. The examiner administered CAPS (Clinician Administered PTSD scale), SCID (Structured Clinical Interview for DSM-IV) and SIMS (Structured Interview of Malingered Symptomatology) assessments. The examiner noted that the Veteran's SIMS score "was significantly elevated above the recommended cutoff score for the identification of likely feigning." The examiner concluded: "This veteran endorsed a high frequency of symptoms and impairment that is highly atypical of individuals who have genuine psychiatric or cognitive disorders." The examiner determined that the Veteran did not meet the criteria for PTSD using the CAPS or the SCID. The examiner diagnosed Anxiety Disorder NOS. He stated he was "unable to determine the Veteran's current level of occupational or social functioning because tests results indicated that the veteran was exaggerating psychological issues." In regard to whether the Veteran has a current diagnosis of PTSD that is related to his claimed stressor of fear related to service, the examiner stated: The undersigned would have to resort to mere speculation to provide the requested opinion. Test results from this exam suggested that the Veteran may have over reported psychological symptoms. Similarly, Dr. W.A.'s 2/18/10 psychological evaluation reflected that on one of the tests administered to the veteran "There were indications that he, perhaps intentionally, presents himself in an overly negative manner." As to the Veteran's military stressors, the examiner found they were not corroborated. In this case, there are medical opinions for and against the Veteran's claim that he has PTSD. The Board has the authority to "discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Brown, 125 F.3d 1477, 1481 (Fed. Cir. 1997). The Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Board may not reject medical opinions based on its own medical judgment. See Obert v. Brown, 5 Vet. App. 30 (1993). Thus, the weight to be accorded the various items of evidence in this case must be determined by the quality of the evidence, and not necessarily by its quantity or source. In evaluating the probative value of medical statements, the Board looks at factors such as the health care provider's knowledge and skill in analyzing the medical data and the medical conclusion that the physician reaches. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993); see also Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008). Other factors that may be considered in assessing the probative value of a medical opinion include a physician's access to the claims file or pertinent evidence, the thoroughness and detail of the opinion, the accuracy of the factual premise underlying the opinion, the scope of examination, the rationale for the opinion offered, the degree of certainty provided, and the qualifications and expertise of the examiner. See generally Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Sklar v. Brown, 5 Vet. App. 140 (1993); Reonal v. Brown, 5 Vet. App. 458 (1993). A bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). The Board is not bound to accept any opinion (from a VA examiner, private physician, or other source) concerning the merits of a claim. Hayes v. Brown, 5 Vet. App. 60 (1993). Rather, it has a duty to assess the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). The Board finds the February 2010 private psychologist's opinion to be competent medical evidence, but considers the October 2010 VA psychologist's opinion more probative. Dr. W.A. did not have the opportunity to view the U.S.S. Independence history or deck logs in his evaluation of the Veteran. The opinion was based on a history of events that was unverified. A medical opinion based on an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). See also Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) ("If the opinion is based on an inaccurate factual premise, then it is correct to discount it entirely") (citing Reonal)). In addition, the February 2010 examiner rendered a diagnosis despite his findings that the Veteran may have intentionally presented himself in a negative light and that in his experience as a medical professional, others experiencing similar symptoms tended to present different, perhaps more serious, psychological problems than those attested to by the Veteran. In addition, the GAF score was assigned with a situational stressor in mind, specifically the illness of the Veteran's wife. Despite this, the examiner concluded the Veteran's PTSD symptoms were as likely as not due to the unverified events the Veteran claimed took place during military service. In contrast, the October 2010 examiner performed a comprehensive series of tests and had the entire record available for review. In his medical opinion, the evidence of record was speculative as to whether a diagnosis of PTSD was warranted. Indeed, the examiner noted that the Veteran's alleged stressors were not verified by the record and that it appeared the Veteran may have exaggerated his symptoms. The Board notes that medical opinions are not automatically inadequate when the examiner states he cannot reach a conclusion without resorting to speculation. The Board may rely on a speculative opinion, provided that "the inability to render a requested opinion is adequately explained by the examiner or otherwise apparent in the Board's review of the evidence." Jones v. Shinseki, 23 Vet. App. 382, 391 (2010). Here, the Board finds the examiner's opinion is persuasive because it is supported by an explanation that is consistent with the evidence of record. In short, the competent medical evidence of record indicates that the Veteran does not have PTSD and the first criterion for service connection for PTSD has not been met. In addition, there is no credible supporting evidence that the claimed in-service stressors occurred. Therefore, even if the Veteran did have a diagnosis of PTSD, the evidence of record would not support entitlement to service connection. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the claim for service connection for PTSD must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER Service connection for PTSD is denied. REMAND Reason for Remand: To obtain an additional medical opinion. The evidence of record reflects that the Veteran has diagnoses of depressive disorder NOS and anxiety disorder NOS. See February 2010 and October 2010 Examination Reports. The Court of Appeals for Veteran Claims has held that matters of service connection for diagnosed psychiatric disabilities other than PTSD are part and parcel of a service connection for PTSD claim. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Thus, the Board finds that the claim for service connection for an acquired psychiatric disorder other than PTSD should be remanded to obtain an additional opinion from the VA psychologist who performed the Veteran's October 2010 VA examination, if available, as to the existence and etiology of any other psychiatric disorders, to include depressive disorder NOS or anxiety disorder NOS. The examiner should provide an opinion as to whether it is at least as likely as not that any diagnosed acquired psychiatric disorder was incurred in service or is related to service. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). Expedited handling is requested.) 1. The RO/AMC should refer the Veteran's claims file to the October 2010 VA examiner or, if he is unavailable, to another suitably qualified VA psychiatrist or psychologist for an additional opinion as to whether any diagnosed acquired psychiatric disorder, to include depressive disorder NOS or anxiety disorder NOS, is causally or etiologically related to active duty, to include the Veteran's reported experiences on the U.S.S. Independence in 1959, as opposed to its being more likely due to some other factor or factors. If another VA examination is deemed necessary in order to provide the requested opinion, such should be scheduled. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1 (2013), copies of all pertinent records in the claims file and this REMAND, must be made available to the examiner for review. 2. When the development requested has been completed, the case should be reviewed by the RO on the basis of additional evidence. If the benefits sought are not granted, the Veteran and her representative should be furnished a Supplemental Statement of the Case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters 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). ______________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs