Citation Nr: 1338274 Decision Date: 11/21/13 Archive Date: 12/06/13 DOCKET NO. 13-12 302 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for Post Traumatic Stress Disorder (PTSD). 2. Entitlement to service connection for a psychiatric disorder to include Chronic Adjustment Disorder with depressed mood. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD Brian E. Flannery, Associate Attorney INTRODUCTION The Veteran had active service from February 1968 to May 1970. This matter initially arose before the Board of Veterans' Appeals (Board) on appeal of a June 2011 rating decision by the RO. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. As such, the electronic claims file and the paper claims file are both fully considered during this appeal. The issue of the Veteran's adjustment disorder with depressed mood is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. FINDINGS OF FACT 1. The Veteran engaged in combat with the ememy. 2. The Veteran does not have PTSD. CONCLUSION OF LAW PTSD was not incurred or aggrevated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304(f), 4.125 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Procedural Duties under Veterans Claims Assistance Act of 2000 (VCAA) A. Duty to Notify VA satisfied its duty to notify the Veteran pursuant to the VCAA. See 38 U.S.C.A. § 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of the evidence that is necessary, or would be of assistance, in substantiating their claims, and provide notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 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 v. Nicholson, 19 Vet. App. 473, 486 (2006). The notice required by the VCAA can be divided into three elements. Specifically, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). Notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In the instant case, notice was provided to the Veteran in January 2011 prior to the initial adjudication of his claim in June 2011. The content of the notice letter fully complies with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The Veteran was notified of the evidence not of record that was necessary to substantiate the claim, and was told that he needed to provide the names of the persons, agency, or company who had additional records to help decide his claim. He was also informed that VA would attempt to determine what additional information was needed to process his claim, and that VA would schedule a VA examination if appropriate, obtain VA medical records, obtain service records, and obtain private treatment reports as indicated. As the content of the notice letter fully complies with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), the Board concludes that VA satisfied its duties to notify the Veteran. B. Duty to Assist VA has also satisfied its duty to assist the Veteran in the development of his claim. First, VA satisfied its duty to seek relevant records. VA's duty to assist includes assisting the claimant in the procurement of service and other relevant records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The RO associated the Veteran's service treatment records and VA treatment records with the claims file. Thus, the Board concludes that VA has made every reasonable effort to obtain all records relevant to the Veteran's claim. Second, VA satisfied its duty obtain a medical opinion when required. The duty to assist also includes providing an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The types of evidence that 'indicate' that a current disability 'may be associated' with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon, 20 Vet. App. at 83. The threshold for finding a link between current disability and service is low. Id.; Locklear v. Nicholson, 20 Vet. App. 410 (2006). In April 2011, VA provided the Veteran a medical examination and obtained a medical opinion addressing whether his claimed current PTSD and adjustment disorder were caused by active service. The examination and opinion are adequate as the examination report shows that the examiner considered the relevant history of the Veteran's psychological issues, he provided a sufficiently detailed description of the disability, and he provided an analysis to support his opinion. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007); Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once VA undertakes the effort to provide an examination when developing a claim, even if not statutorily obligated to do so, VA must ensure that the examination provided is adequate). Having thus established that VA has satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §5103(a), § 5103A , or 38 C.F.R. § 3.159, and that the Veteran will not be prejudiced as a result of the adjudication of his claim. II. Merits of the Claim The Veteran contends that he has PTSD as the result of combat-related stressors from his Vietnam service. During his service in Vietnam, the Veteran indicates he felt fear, helplessness, and horror. Some examples of the of the combat related stressors include a mortar attack on his camp, being involved in a firefight, and being in Phu Bai when a rocket attack killed a dozen men. The establishment of service connection for PTSD has unique evidentiary requirements. It generally requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (i.e., DSM-IV); (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). In adjudicating a service connection claim for PTSD, VA is required to evaluate the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the Veteran served, the Veteran's military records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a); 38 C.F.R. §§ 3.303(a), 3.304. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." See Layno, 6 Vet. App. at 469; 38 C.F.R. § 3.159(a)(2), Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Board has reviewed all the evidence in the Veteran's claim file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by a veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). If it is established through military citation or other supportive evidence that the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(2). See also 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d); Gaines v. West, 11 Vet. App. 353 (1998) (Board must make a specific finding as to whether the Veteran engaged in combat). To gain the benefit of a relaxed standard for proof of service incurrence of an injury or disease, 38 U.S.C.A. § 1154(b) requires that the Veteran have actually participated in combat with the enemy. See VAOPGCPREC 12-99. That is, with regard to combat, if an injury or disease was alleged to have been incurred or aggravated in combat, such incurrence or aggravation may be shown by satisfactory lay evidence, if consistent with the circumstances, conditions, or hardships of service, even if there is no official record of the incident. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). However, the provisions of 38 U.S.C.A. § 1154(b) do not establish a presumption of service connection, but eases the Veteran's burden of demonstrating the occurrence of some in-service incident to which the current disability may be connected. See Caluza v. Brown, 7 Vet. App. 498 (1995). In other words, the statute provides a basis for determining whether a particular injury was incurred in service, but not a basis to link the injury etiologically to the current condition. Dalton v. Nicholson, 21 Vet. App. 23, 36-37 (2007); Cohen v. Brown, 10 Vet. App. 128, 138 (1997); Libertine v. Brown, 9 Vet. App. 521, 523-24 (1996). In determining whether service connection is warranted, the Board shall consider the benefit-of-the-doubt doctrine. 38 U.S.C.A. 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1991); Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran's DD Form 214 confirms that he served in Vietnam and earned a Combat Action Ribbon. The Veteran has also credibly related his combat experiences to VA medical personnel, and the Veteran's claimed combat stressors are consistent with the circumstances, conditions, or hardships of his service. See 38 U.S.C.A. § 1154(b). Therefore, there is sufficient evidence the Veteran engaged in combat during his service. See 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d); VAOPGCPREC 12-99 (October 18, 1999); Moran v. Peake, 525 F.3d 1157, 1159 (Fed. Cir. 2008). Although the Veteran served in combat he must still present: 1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (i.e., DSM-IV); and 2) evidence linking a current diagnosis of PTSD to his confirmed combat-related stressors. With respect to the existence of a current disability, the Board observes that, as part of the April 2011 examination, the VA examiner clearly opined that the a Veteran did not meet the criteria for a PTSD diagnosis. The Board considers that opinion to be probative in light of the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). In addition, the physician's statement reflected "clinical data or other rationale to support h[er] opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999), and was supported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995). Furthermore, the April 2011 examiner's findings, opinion, and rationale are entirely consistent with the totality of the evidence of record, both clinical and lay. These treatment records also show that the Veteran exhibited few, if any, criteria of PTSD that would be necessary for a diagnoses consitant with the DSM IV. Most importantly the examiner also went to great effort to provide a basis for his opinion and assess the diagnosing factors contained in the DSM IV. The examiner noted that after considering some general stressors associated with being in a combat zone, the Veteran does not endorse a sufficient number of re-experiencing symptoms, has no avoidance symptoms or increased arousal symptoms. The examiner did consider sleep issues but found that they appeared to be more related to the Veteran's physical problems than PTSD issues. Accordingly, the Board finds that this examination is sufficient for a fully informed determination and that the VA examiner is competent and his opinion is afforded high probative weight. See Stefl v. Nicholson, 21 Vet.App. 120, 124 (2007)(finding that an examination report is adequate where it describes the disability in sufficient detail so the Board can make a fully informed evaluation of the disability); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-03 (2008) (applying the Federal Rules of Evidence to find that the threshold inquiry in evaluating the probative value of a medical opinion is whether the examiner has sufficient facts and data upon which to base an opinion). The Board has also considered the Veteran's treatment for PTSD by the PASCO OPC in 2011. The Veteran participated in group therapy and the Licensed Clinical Social Worker indicated PTSD for Axis I. The Veteran also saw a psychiatrist who appeared to concentrate on the Veteran's medications. This clinician found the Veteran alert and normal in the following areas: orientation, appearance, behavior, motor activity, speech, flow of thought, memory, concentration, thoughts (no thoughts of hurting himself or others), perceptions, affect, judgment and insight with no delusions. The only symptom the clinician noted was that he Veteran's mood was depressed, angry, and anxious. The clinician also assessed Axis I: PTSD with a GAF of 53. Neither clinician discussed, or gave any basis for their assessments. Although there are indications of PTSD, the clinicians did not give any reasoning for their assessments. These clinicians did not discuss how they came to their conclusions. Indeed, it is not entirely clear whether these conclusions were based on clinical observations or whether the conclusions were a restatement of the Veteran's own lay assessment. Without any kind of indication as to how the diagnosis was made, the probative value of this evidence is decreased. The Board also considers that Veteran's February 2011 Statement on Support of Claim where the Veteran states that he was diagnosed with PTSD at the VAOPC New Port Richey FL facility and that he had the condition for many years but did not recognize the need for help. Further, in his VA form 9, the Veteran indicates that the Statement of the Case was adjudicated with subjectivity. The Veteran also states that he changed in Vietnam and has not been able to forget many of the events. The Veteran feels that a doctor should not be able to stand in judgment over what happened to him and how it effected his life. In view of the fact that PTSD has been diagnosed at least once in the record, the Veteran is competant to report a contemporaneous medical diagnosIs. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However the Veteran's evidence is no better that the evidence upon which his opinion is based. Here the positive medical evidence and the Veteran's own opinions are lacking reasoning and are of little probative value. In sum, there is positive and negative evidence in this case. The appellant served and was in combat. He has related that PTSD has been diagnosed and the record contains medical statement to the effect that he has a diagnosis of PTSD. However, the evidence supporting a diagnosis of PTSD are remarkably lacking in detail, even when we accept the competence of the examiners to enter such a diagnosis. We find that the opinion that the appellant does not have PTSD is far more detailed, reasoned and probative. In light of the foregoing, the Board concludes that the preponderance of the evidence shows that the veteran do0es not have PTSD. As such, while mindful of the benefit-of-the-doubt rule, the Board finds that rule is not for application and that service connection for PTSD must therefore be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). With regard to the combat stressors, the Board acknowledges on July 13, 2010, VA recently amended its regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the required in-service stressor. See Stressor Determinations for Posttraumatic Stress Disorder, 75 Fed. Reg. 39,843 - 39,852 (July 13, 2010) (codified at 38 C.F.R. § 3.304(f)(3), corrected by 75 Fed. Reg. 41,092 (July 15, 2010). However, the Board does not question the existence of a stressor. ORDER Service connection for Post Traumatic Stress Disorder is denied. REMAND The April 2011 examination did diagnose the Veteran with adjustment disorder, All theories of entitlement must be considered, and the Board does note that secondary service connection for adjustment disorder with depressed mood has not been considered. Except as provided in 38. C.F.R. § 3.300, disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. 3.310. In reviewing the file the Board notes that the Veteran is service connected for Ischemic Heart Disease, Diabetese Mellitus, Type II, Tinnitus, and Bilateral Hearing Loss. The April 2011 examiner did indicate that excessive fatigue and nonrestorative sleep may be related to physical problems but did not discuss whether these problems, or the Veteran's overall adjustment disorder was related to his service connected disabilities. Therefore a VA examination is required to address these issues and determine whether the Veteran's adjustment disorder is secondary to any service connected disease or injury. Accordingly, the case is REMANDED for the following action: 1. 1. Schedule a VA examination to determine nature, etiology and extent of the Veterans adjustment disorder and whether it is related to, or aggravated by, the Veteran's current service connected disease or injury. The claims folder should be made available to and be reviewed by the examiner in conjunction with the examination. 2. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issue on appeal. If any of the benefits sought on appeal remain denied, provide the Veteran and his representative with a Supplemental Statement of the Case. Then return the case to the Board for further appellate review, if otherwise in order. 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). ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs