Citation Nr: 1337820 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 07-40 121 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Scott Shoreman, Counsel INTRODUCTION The Veteran had active service from October 1965 to October 1969. This matter comes before the Board of Veterans' Appeals (Board) from a November 2006 rating decision of the above Department of Veterans Affairs (VA) Regional Office (RO). In February 2009, the United States Court of Appeals for Veterans Claims (Court) ruled that when a claimant seeks service connection for PTSD, such a claim must 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 submitted by the claimant or obtained by VA. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Therefore, the Board has broadened his claim of service connection for PTSD, as shown above. This claim was previously before the Board in June 2011, at which time the Board remanded it for additional development. The requested development has been completed, and the claim is properly before the Board for appellate consideration. FINDINGS OF FACT There is no probative evidence that the Veteran has an acquired psychiatric disability, to include PTSD, that is causally or etiologically related to service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disability, to include PTSD, have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 4.125 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2013); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must advise that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Id.; 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). Prior to initial adjudication of the Veteran's claims decided herein, a letter dated in September 2006 fully satisfied the duty to notify provisions of VCAA. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). With respect to the duty to assist in this case, the Veteran's service treatment records, service personnel records, VA treatment records, and private treatment records have been obtained and associated with the claims file. The Veteran was also provided with a VA examination in August 2011 in conjunction with his claim. The examiner provided well-reasoned rationales for her opinions. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Veteran has not made the RO or the Board aware of any additional pertinent evidence that needs to be obtained in order to fairly decide the issues addressed in this decision, and has not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced him in the adjudication of these issues. As there is no indication that there are additional records that need to be obtained that would assist in the adjudication of the claims, the duty to assist has been fulfilled. II. Service Connection Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a) (West 2002); 38 C.F.R. § 3.303(a) (2013). In addition, if a Veteran served 90 days or more, and certain disorders, including psychoses, become manifest to a degree of 10 percent or more within one year from date of termination of such service, then such diseases shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2013). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). The various diagnoses for the Veteran's claimed psychiatric disorder have included depressive disorder, antisocial personality disorder, mood disorder, NOS, and PTSD. The Veteran specifically claimed service connection for PTSD. PTSD is categorized as one of several psychiatric disorders listed as an anxiety disorder by DSM-IV. Establishing service connection specifically for PTSD requires that there be (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; (3) and credible supporting evidence that the claimed in-service stressor actually occurred. 38 C.F.R. § 3.304(f); see also Cohen v. Brown, 10 Vet. App. 128, 138 (1997). The diagnosis of a mental disorder must conform to the Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV) and be supported by the findings of a medical examiner. See 38 C.F.R. § 4.125(a) (2013). To establish service connection for PTSD, the evidence necessary to establish the occurrence of a recognizable stressor during service to support a diagnosis of PTSD will vary depending upon whether or not the Veteran engaged in "combat with the enemy." If the evidence establishes that the Veteran engaged in combat with the enemy, and the claimed stressor is related to that combat, then, 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 C.F.R. § 3.304(d); see also 38 U.S.C.A. § 1154(b) (West 2002); VAOPGCPREC 12-99. On July 13, 2010, VA published a final rule that amended its adjudication regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the occurrence of the required in-service stressor. See 75 Fed. Reg. 39843 (July 13, 2010), and 75 Fed. Reg. 41092 (July 15, 2010) (correcting the effective and applicability dates from July 12, 2010 to July 13, 2010). The revisions apply to, among others, claims appealed before July 13, 2010, but not yet decided by the Board. This revision adds to the types of claims VA will accept through credible lay testimony alone, as being sufficient to establish occurrence of an in-service stressor without undertaking other development to verify the Veteran's account. The amendment of 38 C.F.R. § 3.304(f) eliminates the requirement for corroborating evidence of the claimed in-service stressor if it is related to the Veteran's "fear of hostile military or terrorist activity." The new regulatory provision requires that: (1) A VA psychiatrist or psychologist, or contract equivalent, must confirm that the claimed stressor is adequate to support a diagnosis of PTSD; (2) the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service; and (3) the Veteran's symptoms are related to the claimed stressor. If the veteran did not serve in combat, or if the claimed stressor is not related to combat, there must be independent evidence to corroborate a veteran's statement as to the occurrence of the claimed stressor. See Doran v. Brown, 6 Vet. App. 283, 288-89 (1994). The Veteran's testimony alone cannot establish the occurrence of a non-combat stressor. See Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). The service treatment records do not show any complaints, treatment or diagnoses related to an acquired psychiatric disability. The service personnel records show that the Veteran was entitled to hostile fire pay from August 1968 through August 1969 while serving aboard the USS Caddo Parish. The Veteran wrote in August 2006 that while aboard the USS Caddo Parish the ship came under rocket fire and he witnessed a man die after getting his legs blown off. He wrote in October 2006 he believed that the man who died was named Tim or Tom. At August 2006 VA treatment the Veteran was evaluated for PTSD, and he described the rocket attack from his military service. He reported nightmares, being unable to trust anyone, difficulty sleeping, difficulty bonding, and being easily irritable, agitated, and frustrated. The Veteran said he had never been treated for his problems and had felt that the images, thoughts and feelings would fade sooner or later. The diagnosis was depression, rule out PTSD. A September 2006 VA treatment note from a psychiatrist indicates that the Veteran had anxiety/depression, and an opinion was not provided on etiology. In addition, a September VA social work outpatient treatment note indicates a diagnosis of PTSD, chronic. The Veteran reported that he continued to experience nightmares, flashbacks, night sweats, anxiety, depression and startle reaction secondary to his Vietnam experiences. February 2007 VA psychiatry treatment notes also indicate a diagnosis of PTSD as well as alcohol dependence in partial sustained remission and mood disorder, NOS. PTSD and depression screens from December 2008 and March 2010 VA treatment were negative. An October 2007 response from the National Archives states that the deck logs of the USS Caddo Parish did not show that in or about June through July 1968 the ship was hit by rocket fire and the death of a Veteran named Tim or Tom. A National Archives specialist wrote in June 2011 in response to a request for information that they were unable to locate any references to a rocket attack on the USS Caddo Parish between August 13 and November 27, 1968. The Veteran had a VA examination in August 2011 at which he reported that right after discharge he enjoyed hunting, fishing, and had numerous friends from work. Since moving in 2011 he had made three to four new friends and had been divorced four times. The Veteran had not worked since shortly after having a stroke in 1996 and noted that his left hand and brain did not function properly after that time. He said that he had been depressed "for years, ever since his mother and brother passed away," which he indicated was in 1997. He denied any problems with mental health issues or depression prior to that time. The Veteran was diagnosed with depressive disorder, NOS, antisocial personality disorder, and alcohol dependence in early remission. The examiner did not feel that the Veteran's symptoms met the diagnostic criteria for PTSD because he did not persistently re-experience a traumatic event, did not have persistent avoidance of stimuli associated with trauma or numbing or general responsiveness, and did not have persistent symptoms of increased arousal. Furthermore, the PTSD symptoms did not cause clinically significant distress or impairment in social, occupational, or other important areas of functioning. She also felt that the vast majority of the Veteran's social and occupational impairment was attributable his severe antisocial personality disorder and alcohol dependence. The examiner noted that there was a diagnosis from treatment in February 2007 but that the treatment notes did not have a description of the symptoms that led to the diagnosis. She did not feel that there was any objective evidence in the Veteran's medical records to support a diagnosis of PTSD. Symptoms that could be attributed to PTSD, such as irritability, angry outbursts, detachment, and estrangement from others, were far better accounted for by the Veteran's severe antisocial personality disorder and past history of alcohol dependence. The examiner continued that PTSD is an anxiety disorder, and the Veteran denied anxiety. The examiner opined that the Veteran's depressive disorder, NOS was not related to, caused by or the result of the Veteran's claimed stressor or to any other event that occurred during military service. She noted that the Veteran reported that his depression first began after the death of his mother and brother in 1997, which was well after his military service. The current symptoms were mild and transient, and the Veteran did not meet the criteria for major depressive disorder and had not lost interest in pleasurable activities. The symptoms of depression were more likely than not a result of negative life events. The examiner felt that the Veteran had a very lengthy history of antisocial personality disorder, and behaviors supporting this diagnosis were thoroughly documented in his pre-military and post-military history. The antisocial personality disorder was not caused by, related to or the result of the Veteran's claimed stressor or any other event that occurred during military service. Regarding any diagnosed personality disorder, they are considered congenital or developmental defects and not diseases or injuries for VA compensation purposes. See 38 C.F.R. § 3.303(c), 4.9 (2013); see also Winn v. Brown, 8 Vet. App. 510, 516 (1996). Further, there is no evidence that an acquired psychiatric disorder was incurred or aggravated in service and superimposed in service upon a preexisting personality disorder. The preponderance of the evidence does not show that the Veteran has been diagnosed with PTSD in accordance with the DSM-IV. See 38 C.F.R. § 3.304(f). The August 2011 VA examiner noted that the symptoms the Veteran had that could be attributed to PTSD, such as irritability, angry outbursts, detachment, and estrangement from others, were far better accounted for by the Veteran's severe antisocial personality disorder and past history of alcohol dependence. While the Veteran was diagnosed with PTSD at VA treatment, the treatment records do not show consideration of whether the symptomatology could be due to his severe antisocial personality disorder. Furthermore, the treatment records do not show consideration of the DSM-IV criteria of a PTSD diagnosis in making a diagnosis, in contrast to the VA examiner who noted the elements of a PTSD diagnosis that the Veteran did not meet. Since the preponderance of the evidence does not show that the Veteran has met the diagnostic criteria for PTSD at any point during the claim or appeal period, entitlement to service connection for PTSD must be denied. See McClain v. Nicholson, 21 Vet. App. 319 (2007). The competent and probative evidence does not show that it is at least as likely as not that the Veteran has an acquired psychiatric disability other than PTSD that is related to military service. The treatment records show that the Veteran's diagnoses have included depression and mood disorder, NOS. The treating providers did not provide opinions on etiology. The only competent opinion is from the August 2011 VA examiner, who felt that the depressive disorder was not caused by or related to any incident from military service, and whose rationale noted that by the Veteran's own report his depression began well after his military service and was related to the deaths of member of his family. The VA examiner's opinion can be given probative value because the examination reports shows careful consideration of the record as well as the Veteran's reports to her. See Nieves-Rodriguez, 22 Vet. App. at 304 ("...[M]ost of the probative value of a medical opinion comes from its reasoning" and the Board "must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion."). While the Veteran has made statements to the effect that he has an acquired psychiatric disability related to his military service, he is not competent to make such determinations. His statements on etiology are therefore not afforded probative value. See Jandreau, 492 F.3d at 1376-77; citing Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir.2006)) (though the Federal Circuit held that lay evidence may be competent to establish a diagnosis of a condition, it did not state that lay evidence may be used to determine medical etiology). Because the evidence preponderates against the claim of service connection for an acquired psychiatric disability, to include PTSD, the benefit-of-the-doubt doctrine is inapplicable, and the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for an acquired psychiatric disability, to include PTSD, is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs