Citation Nr: 1337103 Decision Date: 11/14/13 Archive Date: 11/26/13 DOCKET NO. 10-13 755 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). ATTORNEY FOR THE BOARD A.E.H. Gibson, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1962 to March 1963. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In August 2012, the Board remanded this claim for additional development. Specifically, the Board requested that the Veteran be provided the opportunity have additional treatment records added to the record and that he be scheduled for a VA compensation examination. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran has PTSD that is related to any incident of active military service, or that the Veteran's other diagnosed acquired psychiatric disorders manifested during active duty, or are related to active duty military service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, to include PTSD, anxiety disorder NOS, and depression, have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file, and has an obligation to provide an adequate statement of reasons or bases supporting its decision. See 38 U.S.C.A. § 7104 (West 2002); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). While the Board must review the entire record, it need not discuss each piece of evidence. See Gonzales, 218 F.3d at 1380-81. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. Id. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When all the evidence is assembled, 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 a claim, in which case, the claim is denied. Id. The Veterans Claim Assistance Act (VCAA) The VCAA provides that 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of what is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2013). The 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) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice provisions were fulfilled by letters sent in September and November 2008, prior to the March 2009 decision now on appeal. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II); Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370 (2006). The Veteran has not alleged that there was any prejudicial error in the notices received. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (VCAA notice errors are not presumptively prejudicial, and that the Veteran has this burden of proof establishing error and that it was unduly prejudicial). The VCAA further provides that VA has a duty to assist the veteran in the development of the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2013). This duty has been satisfied. The Veteran's service treatment records (STRs) and other pertinent treatment records have been obtained. It appears that all obtainable evidence identified by the Veteran relative to his claim has been obtained and associated with the claims file. Neither he nor his representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. The Veteran was also provided with a VA compensation examination in September 2012 for a medical opinion on the likelihood that any of the Veteran's various mental health diagnoses are related to his service. The Board notes that the examiner fully reviewed the Veteran's case file, elicited his personal history, and directly addressed his contentions. The examination report is therefore found to be adequate for adjudicatory purposes. See Barr v. Nicholson, 21 Vet. App. 303, 310-11 (2007). The Board concludes that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claims. 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, supra. Service Connection The Veteran asserts that he developed PTSD as a result of traumatic events and chronic pain from an injury sustained, which he also indicates caused other acquired psychiatric disorders, including depression and anxiety. Service connection may be granted if it is shown the Veteran developed a disability resulting from an injury sustained or disease contracted in the line of duty, or for aggravation during service of a pre-existing condition beyond its natural progression. 38 U.S.C.A. §§ 1110, 1153; 38 C.F.R. §§ 3.303, 3.306. Service connection requires competent evidence showing: (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 - the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). In addition to those criteria listed above, service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), which requires that it be diagnosed pursuant to the American Psychiatric Association Diagnostic and Statistical Manual for Mental Disorders, 4th ed. (1994) (DSM-IV) as the source of criteria for the diagnosis of claimed psychiatric disorders. DSM-IV provides that 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. Generally, the occurrence of an event alleged as a "stressor" upon which a PTSD diagnosis is based (as opposed to the sufficiency of the alleged event to cause PTSD) is an adjudicative determination, not a medical determination. See Zarycki v. Brown, 6 Vet.App. 91, 97-98 (1993). The evidence necessary to establish the occurrence of a recognizable stressor during service to support a diagnosis of PTSD will vary depending upon whether the Veteran engaged in combat with the enemy, as established by recognized military combat citations or other official records. If VA determines 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 is not combat related, the Veteran's lay testimony, by itself, is not sufficient to establish the occurrence of the alleged stressor and his testimony must be corroborated by credible supporting evidence. See Cohen v. Brown, 10 Vet.App. 128 (1997); Moreau v. Brown, 9 Vet.App. 389 (1996). Here, the Veteran was not in combat and his stressors are not combat-related, thus his stressors must be corroborated. The Court has held that credible supporting evidence of the actual occurrence of an in-service stressor cannot consist solely of after-the-fact medical nexus evidence. See Moreau v. Brown, 9 Vet.App. 389, 396 (1996). However, the Court subsequently held that its prior categorical statements that after-the-fact medical nexus evidence may not be the basis for corroborating a non-combat stressor are "not operative" in cases for service connection for PTSD based on personal assault. See Patton v. West, 12 Vet.App. 272 (1999). Here, the Veteran has not alleged he was personally assaulted. Finally, a claimed stressor that is consistent with the places, types, and circumstances of the Veteran's service does not require corroboration, but only if an evaluating VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that it is related to the Veteran's fear of hostile military or terrorist activity, that it is adequate to support a diagnosis of PTSD, and that the Veteran's PTSD symptoms are related to the claimed stressor. 38 C.F.R. § 3.304(f). The Veteran has asserted that three different stressors led to his PTSD and other diagnoses. He said he injured his hip during active duty in 1962, and the resulting chronic pain has led to depression. He said he learned that his nephew was killed in Vietnam in 1968, while he was on standby to potentially be called to Vietnam. Lastly, he said that upon return from training in Italy in 1985, he came home to find that his wife had left him, taken one of their children, and all of their belongings. The Board observes that only the hip injury is alleged to have occurred during active duty. The Board acknowledges the Veteran was in the National Guard, and therefore likely had multiple periods of active duty for training (ACDUTRA) or inactive duty for training (INACUTRA). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated while performing ACDUTRA, or from injury, but not disease, incurred or aggravated while performing INACDUTRA. 38 U.S.C.A. §§ 106 , 1110, 1131; 38 C.F.R. § 3.303(a) . The Veteran's remaining two stressors, however, did not occur during a period of ACDUTRA or INACDUTRA. Indeed, he asserts he was waiting to find out whether he would be sent to Vietnam in 1968, and in 1985, he was returning home from training. The Veteran's STRs do not show complaints of or treatment for a hip injury. His joints and lower extremities were clinically evaluated as normal throughout his service in the National Guard. In a December 2007 statement, the Veteran's brother explained that the Veteran was in good health and in good spirits all his life prior to service, and was excited to enter the service. He said he suffered an injury during training that put him on light duty. He also said that the Veteran came home from training in Italy to find his wife had left him, which left him depressed. He said that his brother complained about his hip ever since the incident. In March 2008, the Veteran was diagnosed by his private physician with depression due to a medical disorder, recurrent major depressive disorder, and chronic PTSD. The Veteran reported that he had injured his right hip in training, leading to a light duty assignment, and that the pain presently remains. He also reported coming home from training in Italy in 1985 and finding his wife and child gone, which had caused depression over the years. The Veteran reported feeling depressed since the latter incident, and that he does not like socializing. He also reported that his nephew was killed in Vietnam, which he still relived through flashbacks and nightmares. He complained of trouble sleeping and daily flashbacks. He said that the hip pain has ruined his life. He avoids thinking of these issues, has a restricted affect, and is hypervigilant. In a September 2009 statement, the Veteran alleged he had PTSD as a result of combat and witnessing injuries. He also said his nephew was killed in Vietnam. At the September 2012 VA examination, the Veteran was diagnosed with anxiety disorder NOS. The VA examiner did not find any of his three stressors sufficient to meet the requirement of Criterion A for a PTSD diagnosis under the DSM-I. He further noted that the Personality Assessment Inventory (PAI) diagnostic test results were inconsistent with a PTSD diagnosis. The Veteran presented as very concerned over his physical health, and his test results were consistent with depression and anxiety. The VA examiner opined that the Veteran's acquired psychiatric disorders were not a result of service. He reiterated that the claimed stressors did not satisfy the criteria for a PTSD diagnosis. The Veteran reported that the death of his nephew was the most bothersome, but he did not witness that event. There were no threats to the Veteran at that time. The examiner said that the Veteran's wife leaving him or his pain from an injury also do not meet the criteria, thus did not find him to have a PTSD diagnosis in accordance with the DSM-IV. The examiner noted the Veteran has mixed symptoms of mild anxiety and depression. Again, the Veteran reported that his nephew's death had the most impact, but the examiner pointed out that this did not occur during active duty, so his anxiety disorder NOS could not be related to service. The examiner commented that the Veteran's private physician's opinion diagnosed PTSD, but the same stressors were considered and they do not meet the requirements of Criterion A. Based on the foregoing, the Board finds that service connection is not warranted for any acquired psychiatric disorder. In regard to PTSD, the Veteran does not have a current diagnosis that comports with the requirements of the DSM-IV. 38. C.F.R. § 4.125a. His private physician's diagnosis of PTSD is outweighed by the VA examiner's opinion that the Veteran does not have PTSD. See also Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Veteran's doctor did not explain how the Veteran's stressors meet the requirements of Criterion A, while the VA examiner explained that these stressors did not place the Veteran in a position of being exposed to an event that caused him to react with intense fear, helplessness, or horror. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran's other diagnosed psychiatric disorders are also not related to service. The VA examiner did not find anxiety related to service because the Veteran reported that the most disturbing stressor was the death of his nephew, which did not occur during active duty. The Board points out that the only incident reported by the Veteran that allegedly occurred during active service was the injury to the right hip. The examiner did not specifically opine on whether a hip injury with resulting chronic pain could have led to anxiety. Both the examiner and the Veteran's private physician note that his mental health symptoms, particularly depression, stem from physical ailments, but a right hip injury has not been corroborated as occurring in service. Indeed, the Veteran filed a claim of entitlement to service connection for a right hip disability, which was denied in October 2008. He cannot be service-connected for an acquired psychiatric disorder as due to a service-related injury that has not been found to be service-connected. Thus, even though some of his mental health symptoms have possibly been attributed to chronic pain, the required nexus between the pain and service is not established. The statements received in this case are not probative to the issue. The Veteran reported that he was diagnosed with PTSD as a result of combat, which is not credible. His DD Form 214 does not reflect that he received any awards, citations, or decoration denoting having served in combat; rather, it indicates he completed a period of ACDUTRA, which, by its name, denotes training as opposed to active duty, during which time combat is contemplated. His statement that he injured his hip and now has chronic pain is not probative, as the hip injury has not been shown to have occurred. In this regard, the Veteran has tried to have a right hip injury service-connected, which was denied, and which the Veteran did not appeal. New and material evidence is required to reopen that issue. 38 C.F.R. § 3.156. His brother's statement, wherein he reiterates two of the Veteran's claimed stressors, is not probative. The Veteran's only stressor that could have occurred during active duty has not been shown to have occurred. Accordingly, service connection for an acquired psychiatric disorder, including PTSD, must be denied. The preponderance of the evidence is against this claim, and under these circumstances the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013). See also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER The claim of entitlement to service connection for an acquired psychiatric disorder is denied. ____________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs