Citation Nr: 1337892 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 93 07 167A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for an acquired psychiatric disability other than PTSD, to include anxiety disorder, not otherwise specified (NOS). 3. Entitlement to service connection for hypertension, to include as secondary to service-connected ischemic heart disease or diabetes mellitus, type II, or in the alternative, claimed as due to exposure to herbicides. 4. Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected diabetes mellitus, type II, or in the alternative, claimed as due to exposure to herbicides. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD S. Dale, Counsel INTRODUCTION The Veteran served on active duty from March 1970 to March 1972. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2004 administrative decision and a November 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In March 2010, the Veteran and his wife testified at a Board hearing before the undersigned concerning his claim to establish service connection for a psychiatric disability, to include PTSD and anxiety disorder, NOS. A transcript of that hearing is of record. The issue of entitlement to service connection for PTSD was previously before the Board in March 1992, when the Board denied the Veteran's claim. After this denial became final, the Veteran submitted a petition to reopen this claim. A Travel Board hearing was held in March 2010 with the Veteran at the RO before the undersigned, who was designated to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c), (e)(2) and who is rendering the determination in this case. A transcript of the hearing testimony is in the claims file. In June 2010, the Board, inter alia, reopened the Veteran's claim, expanded the issue to include all acquired psychiatric disabilities under the United States Court of Appeals for Veterans Claims' (the Court's) holding in Clemons v. Shinseki, 23 Vet. App. 1 (2009), and denied it on the merits. The Veteran then appealed this portion of the June 2010 Board decision to the Court and, in an Order dated in February 2011, the Court partially vacated the Board's June 2010 decision and remanded the case to the Board for development consistent with a January 2011 Joint Motion for Remand (JMR). As a result, this matter was again before the Board in February 2012, when the Board, inter alia, denied the Veteran's claim. The Veteran appealed this portion of the February 2012 Board decision to the Court. In an Order dated in September 2012, the Court partially vacated the Board's February 2012 decision and remanded the case to the Board for development pursuant to a JMR. In July 2013, the Board remanded the Veteran's claim to establish service connection for an acquired psychiatric disability, to include PTSD and anxiety disorder, NOS, for development consistent with the September 2012 JMR. The Board's July 2013 remand directives and the subsequent actions of the RO and VA Appeals Management Center (AMC) will be further discussed below. The Veteran's claims have been returned to the Board. Characterization of issues on appeal The Veteran initially filed a petition to reopen his previously-denied claim to establish service connection for PTSD. As will be discussed below, the evidence dated since the Veteran's separation from service includes reports of PTSD symptoms and a diagnosis of anxiety disorder, NOS. In Clemons, the Court held that, in determining the scope of a claim, the Board must consider the Veteran's description of the claim; symptoms described; and the information submitted or developed in support of the claim. Id. at 5. Although the Board acknowledges the Court's holding in Clemons, as will be discussed below, there is no valid PTSD diagnosis of record during the appeal period, and VA's laws and regulations concerning claims to establish service connection for PTSD are wholly separate and distinct from those pertaining to service connection claims for other psychiatric disabilities. As such, the Board has bifurcated the Veteran's original claim to parse out the issue of entitlement to service connection for PTSD and expanded the remaining issue as to include all other acquired psychiatric disabilities which have been diagnosed, per Clemons. The issues are as stated on the title page. The issues of (1) entitlement to service connection for an acquired psychiatric disability other than PTSD, to include anxiety disorder, NOS, (2) entitlement to service connection for hypertension, to include as secondary to service-connected ischemic heart disease or diabetes mellitus, type II, or in the alternative, claimed as due to exposure to herbicides, and (3) entitlement to service connection for erectile dysfunction, to include as secondary to service-connected diabetes mellitus, type II, or in the alternative, claimed as due to exposure to herbicides, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the AMC, in Washington, DC. FINDING OF FACT The evidence does not show that the Veteran has been diagnosed with PTSD during the appeal period. CONCLUSION OF LAW The criteria for service connection for PTSD are not met. 38 U.S.C.A. §§ 1131, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION With respect to the claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 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 (2013). Letters dated in September 2003 and February 2008 satisfied the duty to notify provisions, to include notifying the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board notes in passing that the Veteran's claim decided herein was initially adjudicated by the RO prior to the Court's holding in Dingess/Hartman, concerning notice of the assignment of disability ratings and effective dates. As such, providing the Veteran with complete VCAA notice in connection with his claim for prior to the initial adjudication of such by the RO as per the Court's holding in Pelegrini v. Principi, 18 Vet. App. 112 (2004), was a practical and factual impossibility. However, the February 2008 fully satisfied the duty to notify provisions concerning his claim for an increased evaluation. Since the Veteran's claim was readjudicated in several Supplemental Statements of the Case (SSOC) after the issuance of this notice, any timing error regarding the notice has been cured and there is no prejudice to the Veteran. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). The Veteran has not been apprised, in accordance with 38 C.F.R. § 19.29, of the new PTSD provisions codified at 38 C.F.R. § 3.304(f)(3), effective July 13, 2010. However, as discussed below, the evidence does not show a valid PTSD diagnosis during the appeal period; rather, his psychiatric symptoms are due to anxiety disorder, NOS. Since the Veteran does not have a diagnosis of PTSD, remand for notice to the Veteran of 39 C.F.R. § 3.304(f)(3) is not warranted. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran). The Veteran's service treatment records and VA medical treatment records have been obtained and associated with the record. There is no indication of outstanding private treatment records which are pertinent to the Veteran's claim. The record does not reflect that the Veteran is in receipt of disability benefits from the Social Security Administration (SSA). 38 C.F.R. § 3.159 (c) (2); Golz v. Shinseki, 590 F.3d 1317, 1320-21 (Fed. Cir. 2010). During the pendency of the Veteran's appeal, he was afforded VA examinations in connection with this claim in January 2008, September 2010 and, in accordance with the Board's July 2013 remand directive, August 2013. The Board concludes that these VA examinations are adequate for the purposes of adjudicating the Veteran's PTSD claim. Specifically, the examiners reviewed the complete record, addressed the appropriate matters affecting the Veteran's PTSD claim and provided diagnoses and opinions which are congruent with the other evidence of record. All offered opinions are accompanied by a complete rationale. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). To this extent, the Board's July 2013 remand directives have been substantially completed with regard to the Veteran's PTSD claim. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) (2013) requires that the Board member who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the March 2010 Board hearing, the Board member noted the elements of the claim that were lacking to substantiate the claim of service connection. The Veteran was assisted at the hearing by an accredited representative from the Disabled American Veterans. The representative and the Board member asked questions to ascertain the existence of a current diagnosis of PTSD and verifiable stressor event as well as a nexus of any current diagnosis to his military service, to include any verified stressor event(s). No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or the representative. The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims for service connection. Neither the representative nor the Veteran has suggested any deficiency in the conduct of the hearing. Therefore, the Board finds that, consistent with Bryant, the Board member complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). There is no indication in the record that any additional evidence, relevant to the issue denied in this decision, is available and not part of the record. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). All of the evidence in the Veteran's claims file has been thoroughly reviewed. Although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the entire record must be reviewed, but each piece of evidence does not have to be discussed). The analysis in this decision focuses on the most salient and relevant evidence and on what the evidence shows or fails to show with respect to the matter denied. The Veteran should not assume that pieces of evidence, not explicitly discussed herein, have been overlooked. Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). PTSD Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Initially, claims for service connection for PTSD require medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (2013), namely a valid PTSD diagnosis under the Fourth Edition of the American Psychiatric Association 's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). Additionally, the evidence must include 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). If the Veteran fails to demonstrate any one element, denial of service connection will result. Shedden, 381 F.3d 1163. After review of all of the evidence of record, the Board finds that the preponderance of the evidence is against the Veteran's claim because the record does not reflect a diagnosis of PTSD in accordance with the pertinent criteria, namely that detailed in the DSM-IV (criteria A-F), during the pendency of the appeal. See Brammer v. Derwinski v. West, 3 Vet. App. 223 (1992) (in the absence of a current disability, there can be no valid claim for service connection). In this regard, the Veteran received a DSM-IV diagnosis of PTSD at a June 1991 VA examination in connection with his previous claim. A number of progress notes dated thereafter, and as recently as 1997, note PTSD symptoms, but none of these records include a DSM-IV diagnosis of PTSD. The Court has determined that the requirement of the existence of a current disability is satisfied when the Veteran has a disability at the time he files his claim for service connection or during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Indeed, even a diagnosis that is sufficiently proximate to the filing of the claim can constitute evidence of a current diagnosis. Romanowsky v. Shinseki, No. 11-3272, 2013 WL 3455655 (Vet. App. July 10, 2013). However, while the Board is mindful of this evidence, the totality of the evidence does not support that the Veteran had PTSD during the pendency of the current appeal or that such a diagnosis was rendered contemporary with his claim. As noted above, even if the most recent PTSD diagnosis was rendered pursuant to the DSM-IV, which it is not, this diagnosis would not be contemporary with the present claim, which was filed six years later. Moreover, as alluded to by the VA examiners in the reports of the January 2008 and September 2010 VA examinations and as clarified in the August 2013 VA examination report, while the Veteran met the DSM-IV criteria for PTSD prior to his appeal, his psychiatric symptomatology decreased "over time," and he did not meet the diagnostic criteria for such a diagnosis during the pendency of the appeal or at any time contemporaneous to his filing of the present claim. See the January 2008, September 2010 and August 203 VA examination reports. In sum, there are three records during the appeal period which render multi-axial psychiatric diagnoses pursuant to the DSM-IV, and none of these include a diagnosis of PTSD. See the January 2008, September 2010 and August 203 VA examination reports. All of these records address a possible diagnosis of PTSD; however, the examiners provided a diagnosis of anxiety disorder, NOS, on all three occasions. There is no medical evidence of record to the contrary, and it is accorded great weight. See Owens v. Brown, 7 Vet. App. 429 (1995) (it is the Board's fundamental responsibility to evaluate the probative value of all medical and lay evidence); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991) (holding that the Board must consider only independent medical evidence to support its findings rather than provide its own medical judgment). The Board is mindful of the assertions from the Veteran and his wife that he has PTSD, and notes that under certain circumstances, a layperson is competent to identify a simple medical condition. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (noting, in a footnote, that sometimes a layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer). As noted above, in cases to establish service connection for PTSD, there is a specific legal requirement that the diagnosis be rendered in accordance 38 C.F.R. § 4.125, that is, a diagnosis that conforms to the DSM-IV. 38 C.F.R. § 3.304(f). In other words, PTSD is not a simple medical condition that the Veteran or his wife, lay persons, can perceive based on mere personal observation, that is, by visual observation or by any other of the senses. For these reasons, the Veteran and his wife, as a lay persons, are not competent to declare that he has PTSD or to offer an opinion that PTSD is related to some incident in service, as PTSD is not a simple medical condition. Also, it has not been established that the Veteran and/or his wife are otherwise qualified through specialized education, training, or experience to state that he has PTSD or to offer a medical diagnosis or an opinion on medical causation. The Court has held that where the determinative issue involves a question of medical diagnosis or causation, only individuals possessing specialized medical training and knowledge are competent to render such an opinion. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. Sept. 14, 2009), citing Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Barr v. Nicholson, 21 Vet App 303 (2007) (lay testimony is competent to establish the presence of varicose veins); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis). In this case, the evidence does not reflect that the Veteran and/or his wife possess a recognized degree of medical knowledge that would have rendered their opinions on medical diagnosis or causation competent. Accordingly, to the extent that the statements of the Veteran and his wife are offered as evidence of a diagnosis, the statements are not competent evidence and the statements necessarily are excluded as evidence in support of the claim. Where, as here, there is a question of a diagnosis, not capable of lay observation, and the claimed disability is not a simple medical condition, competent medical evidence is required to substantiate the claim. Also, where there is a question of medical causation, that is, medical evidence of an association or link between the claimed disability, first shown after service, and an injury, disease, or event in service, where a lay assertion on medical causation is not competent evidence, Grottveit v. Brown, 5 Vet. App. 91, 93 (1993), competent medical evidence is required to substantiate the claim. In this case, the medical evidence reflects that the Veteran does not meet the DSM-IV criteria for a diagnosis of PTSD at any time during the pendency of the appeal or at a time which is contemporaneous with his filing the current claim for benefits. The preponderance of the evidence is consequently against the claim of service connection. Owens, 7 Vet. App. 429 (1995) (it is the Board's fundamental responsibility to evaluate the probative value of all medical and lay evidence). Apart from the allegations from the Veteran and his wife that he has PTSD, there is no competent evidence of the disorder during the appeal period or contemporaneous with the Veteran's filing the current claim. The criteria for a grant of service connection for PTSD are, consequently, not met. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); (holding that if the Veteran fails to demonstrate any one of the elements for a grant of PTSD, including, medical evidence diagnosing the condition in accordance with the provisions of 38 C.F.R. § 4.125(a), denial of service connection will result). Because the evidence of record does not indicated a diagnosis of PTSD under the DSM-IV as required by the controlling regulations, the preponderance of the evidence is against his claim for entitlement to service connection. As such, the benefit of the doubt doctrine is inapplicable, and the claim must be denied. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for PTSD is denied. REMAND Regrettably, the remainder of the Veteran's claims must be remanded in order to allow VA to fulfill its duty to assist the Veteran in substantiating his claims. Acquired psychiatric disability other than PTSD As noted in the Introduction, the Board has expanded and bifurcated the Veteran's original claim to establish service connection for an acquired psychiatric disorder other than PTSD. Although anxiety disorder, NOS, was diagnosed by VA examiners in January 2008, September 2010 and August 2013, a possible nexus between this diagnosed disability and his service has not been addressed. To that extent, these VA examinations are inadequate for the purpose of adjudicating the Veteran's claim, and thus, a remand is necessary. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). As this claim is being remanded for other matters, the Board concludes that updated VA treatment records dated from July 3, 2013, to the present should be associated with the record. Hypertension and erectile dysfunction In his October 2012 substantive appeal, the Veteran requested an opportunity to provide oral testimony in support of his erectile dysfunction and hypertension claims to a member of the Board via videoconferencing equipment (a videoconference hearing). To date, such a hearing has not been scheduled. Therefore, the Board finds that these issue must be remanded in order to schedule the Veteran for a videoconference hearing. See 38 C.F.R. § 20.700 (2012). Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the record updated VA treatment records dated from July 3, 2013, to the present. 2. Thereafter, the RO/AMC must afford the Veteran a VA psychiatric examination. The complete record, to include the paper claims file AND the electronic Virtual VA file, must be made available to the clinician designated to examine the Veteran, and a report of the examination should include discussion of the Veteran's medical history and assertions. All necessary tests and studies, to include psychological testing, should be accomplished, and all clinical findings should be reported in detail. After completion of instruction above, the VA examiner should address the following: a) Identify all acquired psychiatric disorders which are present on Axis I. b) If anxiety disorder, NOS, is not diagnosed, attempt to reconcile this conclusion with the January 2008, September 2010 and August 2013 VA examination reports which provide such a diagnosis. c) For each acquired psychiatric disorder which is identified on Axis I, the examiner should then express an opinion as to whether it is at least as likely as not (at least a 50 percent probability) that the Veteran's diagnosed acquired psychiatric disorder(s), to include anxiety disorder, NOS, had its onset in service or within the initial post-service year or is otherwise etiologically related to his service. The examiner is reminded that a separate opinion must be conveyed for each acquired psychiatric disorder which is identified. The examiner should adequately summarize the relevant history and clinical findings, and provide adequate reasons for the medical conclusions rendered. (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 a conclusion as it is to find against it.) In rendering the opinion(s), the examiners should not resort to mere speculation, but rather should consider that the phrase "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 a certain conclusion as it is to find against it. Thus, unless the examiners conclude that the current disability is either likely or unlikely the result of an event, injury, or disease incurred in service, the examiners should state whether it is at least as likely that the current disability is the result of an event, injury, or disease incurred in service as opposed to its being the result of some other factor or factors. 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. 3. The Veteran must be advised of the importance of reporting to the scheduled VA examination and of the possible adverse consequences, to include the denial of his claim, of failing, without good cause, to so report. See 38 C.F.R. § 3.655 (2013). A copy of the notification letter advising the Veteran of the time, date, and location of the scheduled examination must be included in the examination report, and must reflect that it was sent to last known address of record. If he fails to report, the claims folder must indicate whether the notification letter was returned as undeliverable. 4. The RO/AMC must review the examination report; if it is found to be deficient in any way, it must be returned for corrective action. 5. Thereafter, the RO must place the Veteran's name on the docket for a hearing at the RO before a Board member, according to the date of his request for such a hearing in connection with his hypertension and erectile dysfunction claims (See the October 2012 substantive appeal.) 6. The RO/AMC should then readjudicate the claim to establish service connection for an acquired psychiatric disability other than PTSD in light of all of the evidence of record on the merits. If the benefit sought is not granted to the fullest extent, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC) as to the issue on appeal, and afforded a reasonable period of time within which to respond thereto. The case should then be returned to the Board for further appellate consideration, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the 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). ______________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs