Citation Nr: 1338760 Decision Date: 11/25/13 Archive Date: 12/06/13 DOCKET NO. 09-31 481 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Neilson, Counsel INTRODUCTION The Veteran served on active duty from November 1967 to February 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2007 and May 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In May 2011, the Veteran testified at a hearing before the undersigned Veterans Law Judge, sitting at the RO. A transcript of that hearing has been associated with the record. The instant matter was previously before the Board in December 2011, at which time it was remanded for further development. Upon completion of the requested development, the agency of original jurisdiction (AOJ) readjudicated the claim via a July 2012 supplemental statement of the case (SSOC). The case was returned to the Board the following month. FINDINGS OF FACT 1. At no time during the current appeal has the Veteran been found to have a PTSD diagnosis that conforms with the criteria set forth in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), as required by 38 C.F.R. § 4.125. 2. The Veteran does not have a psychiatric disorder that is attributable to his active service. CONCLUSION OF LAW The Veteran does not have a psychiatric disorder, to include PTSD, that was incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Notice and Assistance The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp 2013), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim. They also require VA to notify the claimant and the claimant's representative of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002); Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159(b). As part of the notice, VA is to specifically inform the claimant and the claimant's representative of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The VCAA notice requirements apply to all five elements of a service connection claim. These are: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Upon receiving the Veteran's claim of service connection for a psychiatric disorder, the RO sent to him a letter dated in December 2005 wherein he was notified of the evidence required to substantiate that claim. The letter advised the Veteran of the information already in VA's possession and the evidence that VA would obtain on his behalf, as well as of the evidence that he was responsible for providing to VA, to include any records not in the possession of a Federal agency. The RO further advised the Veteran on the types of evidence he could submit that would support his claim for service connection, such as treatment records related to the claimed conditions and statements from persons who knew of any disabilities that he may have had in service witnessed how the claimed disability has affected him. The Veteran has not disputed the contents of the VCAA notice in this case. Further, the Board finds that the June 2006 notice letter complies with the requirements of 38 U.S.C.A. § 5103(a) as required by Quartuccio, supra, and afforded the Veteran a meaningful opportunity to participate in the development of his claims. Although the Veteran was not specifically informed of how VA assigns disability ratings and effective dates, given that service connection for an acquired psychiatric disorder will be denied, any error in this regard is harmless. Thus, the Board finds that the relevant duty-to-notify requirements under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) were satisfied. Regarding the duty to assist, the Board finds that the duty-to-assist requirements under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c) were satisfied. All available evidence pertaining to the Veteran's claim has been obtained. The evidence includes his service treatment records (STRs), records from the Social Security Administration (SSA), VA examination reports, VA treatment records private medical evidence, and statements from the Veteran. Neither the Veteran nor his representative has suggested that further assistance is necessary or that there exists outstanding relevant evidence. The Board also finds that the medical evidence of record is adequate for the Board to rely upon in this case. The Veteran has been afforded several VA examinations in connection with his claim of service connection for an acquired psychiatric disorder. The Board has considered the Veteran's arguments regarding the adequacy of the examinations, but finds that they are without merit. Nothing in the examination reports suggests that any examiner did not conduct a full examination of the Veteran such that the Board should not rely on the findings contained therein. The examination reports reveal that the examiners reviewed the claims folder, conducted necessary psychological testing, and considered the lay contentions of the Veteran, as well as the VA treatment records, before expressing opinions regarding whether the Veteran met the DSM-IV criteria for a diagnosis of PTSD. The Board finds that a January 2012 VA examiner provided the opinions requested by the Board in its December 2011 Remand and that each opinion expressed is supported by an adequate rational and is consistent with the evidence of record. Thus, the Board has properly assisted the Veteran by affording him an adequate VA examination in connection with each claim. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stegall v. West, 11 Vet. App. 268, 271 (1998). In this regard, the Board notes that the January 2012 VA examiner did not expressly state whether the Veteran suffered from anxiety related to service. As will be discussed in further detail below, although the Veteran's VA treatment records note that he was taking medication for anxiety, they did not indicate that the Veteran had been specifically diagnosed with an anxiety disorder. Further, the VA examiner considered whether the Veteran's constellation of symptoms warranted any Axis I diagnosis, but found that they did not. Given this evidence, the Board finds no basis to again remand the matter, as the probative evidence of record fails to document a diagnosed anxiety disorder, as opposed to generalized anxiety symptoms. II. Analysis The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). Service connection may 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). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) 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, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection for PTSD requires: (1) a medical diagnosis of PTSD utilizing the DSM-IV criteria, in accordance with 38 C.F.R. § 4.125(a); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in-service stressor. See Cohen v. Brown, 10 Vet. App. 128, 138 (1997); 38 C.F.R. § 3.304(f) (2013). In the instant case, the Board finds that the evidence of record does not support a finding of service connection for an acquired psychiatric disorder, to include PTSD. Evidence relevant to this determination is outlined as follows. In March 2007, the Veteran was afforded a VA examination in connection with his claim. Regarding an in-service stressor, the Veteran reported having been in combat and stated his belief that because his brother had served in the same area as he had and was service connected for PTSD, he should also be receiving disability benefits for PTSD. The Veteran reported some memories about his time in service, but the examiner noted that he did not endorse anxiety, fear, and pervasiveness of anxiety as one does with PTSD. The Veteran reported persistent anger and irritability towards people, especially towards women since his wife left him. In consideration of the information obtained during examination of the Veteran, the VA examiner concluded that although the Veteran had been in combat in service, he did not meet the DSM-IV criterion for a diagnosis of PTSD. The examiner did, however, render an Axis II diagnosis of narcissistic personality disorder. A May 2007 VA treatment record shows that the Veteran had been prescribed Alprazolam for anxiety and that a PTSD screen was positive. It is not evident from the PTSD screen that service-related events in any way contributed to the positive finding. In July 2007, the Veteran presented for a diagnostic interview. At that time, the Veteran reported several stressful in-service events, to include being ambushed, being shot at, seeing people die, and having his best friend die in his arms. The Veteran endorsed a number of symptoms/responses and a diagnosis of PTSD was recorded. (The Board notes that the outpatient note was not signed until November 2007). The VA clinician noted that the Veteran was aggressive, uncooperative, and hostile throughout the interview. It was also indicated that upon completion of the interview, the Veteran reported that he was not interested in obtaining any type of treatment, stating that "he had completed the evaluation in order to have a diagnosis of PTSD in his chart for Compensation and Pension claim purposes." The Veteran was afforded another VA examination in March 2008. At that time, he reported prior mental health therapy in 1998 and 1999 while going through a divorce. He was also enrolled in a domestic violence program for six months in 2002. He reported being prescribed Alprazolam for his sleep, stating that he took it "every once in awhile." He denied any other history of psychiatric treatment in the form of psychotherapy, medication management, or hospitalizations. The Veteran again stated that he was not interested in pursuing treatment and that he had presented for evaluation to support his claim for VA disability compensation. Regarding his alleged in-service stressors, the Veteran reported being ambushed, being shot at, seeing people die, and having his best friend die in his arms. He endorsed intense fear, hopelessness, horror, and feelings of guilt as a result. Two psychological tests were given, the scores of one being consistent with PTSD and the other being slightly below the cutoff for a diagnosis of PTSD. The examiner noted that the validity of the test results were questionable based on the interview with the Veteran. Overall, the VA examiner found that the Veteran did not meet the DSM-IV criterion for a diagnosis of PTSD. The examiner noted malingering and also provided an Axis II diagnosis of narcissistic personality disorder with paranoid traits. In discussing the symptoms endorsed by the Veteran, the examiner noted that the Veteran reported self-isolation, an inability to get along with others, thoughts of Vietnam, and sleep disturbances, but indicated that the Veteran had no trouble going to public places and did not avoid people or places by his own report. The examiner further stated that the Veteran's aggressive posture, hypervigilance, and intimidation of others were behaviors better accounted for by his personality disorder than by any PTSD. In concluding that the Veteran did not meet the DSM-IV criteria for a diagnosis of PTSD, the examiner noted that the Veteran had a hard time identifying a specific traumatic event that bothered him. The examiner further indicated that the Veteran did not appear upset when he talked about the events that had occurred, stating that the Veteran was in fact quite animated and seemed proud. The examiner also described the Veteran as loud, intimidating, and agitated and noted that he had bought up his last evaluator several times, demeaning her abilities and showing his aggravation towards the fact that he was requested to give multiple concrete examples of events in service and reactions thereto. The examiner stated that the Veteran appeared to take a defensive posture regarding his behaviors in Vietnam, as well as current behaviors. The examiner also found it likely that the Veteran was exaggerating any symptoms of PTSD he might be experiencing and was more likely than not malingering for financial benefits. In May 2011, the Veteran testified at a Board hearing. Regarding any in-service stressors, the Veteran stated that his best friend was shot during a firefight while he was standing next to him. The Veteran reported helping to load his friend onto the helicopter and transport him to the hospital. He also stated that he was exposed to numerous life-threatening situations and reported flashbacks and feelings of sadness when watching news about the current war. In January 2012, the Veteran was afforded a third VA examination, which examination was conducted for the specific purpose of determining whether the Veteran indeed suffered from PTSD or from any other psychiatric disability as a result of service. The examiner reviewed the claims folder, noting the July/November 2007 diagnosis of PTSD contained in the Veteran's VA treatment records, but pointing out the Veteran's self-reported reasons for presenting for evaluation at that time were to obtain a diagnosis of PTSD for purposes of his VA disability compensation claim. When asked about his service-related stressors, the Veteran reported that his best friend was shot in the neck. The examiner indicated that that stressor was sufficient to support a diagnosis of PTSD. Regarding criterion B, the examiner noted that the traumatic event was persistently re-experienced by recurrent and distressing recollections; specifically, however, the Veteran reported memories of being without food or water for three days, which does not appear to be related to the stressor of his friend being shot. In any event, the Veteran exhibited persistent avoidance of stimuli in only two ways, whereas DSM-IV criterion C requires three signs of avoidance. Overall, the examiner found that the Veteran did not meet the full DSM-IV criteria for a diagnosis of PTSD. The examiner stated that the Veteran's main mental health problems were related to intense anger, irritability, hostility, an inability to get along with other, recurrent interpersonal conflicts, and feelings of emptiness, detachment, and loneliness. It was also felt that the Veteran presented with poor insight and a tendency to blame others. The examiner attributed those symptoms to an Axis II diagnosis of a personality disorder, and stated that the Veteran's symptoms did not warrant a formal diagnosis of a mood disorder. Thus, no Axis I diagnosis was rendered. At the outset, the Board notes that the evidence establishes that the Veteran was awarded the Combat Infantryman Badge and, as such, is considered a combat veteran. Notably, "[i]f the evidence establishes 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). Here, although the Veteran has been somewhat vague regarding his alleged in-service stressors, the Board finds that, given the Veteran's status as a combat veteran, the evidence is sufficient to concede establishment of an in-service stressor. Id; see Cohen, supra. Regardless, however, of whether there is evidence of an in-service stressor, for an award of service connection for PTSD to be warranted, there must be a DSM-IV-conforming diagnosis of PTSD. That evidence is lacking in this case. Specifically, no VA examiner has provided an Axis I diagnosis of PTSD. The most recent VA examination report of record clearly identifies which criterion are lacking and the examiner also related much of the Veteran's symptomatology to his Axis II personality disorder. While the Board does not dispute that a VA treatment note records an Axis I diagnosis of PTSD, the Board finds reason to question the accuracy of that diagnosis. Indeed, it was noted in the treatment entry that the Veteran reported that "he had completed the evaluation in order to have a diagnosis of PTSD in his chart for Compensation and Pension claim purposes." Moreover, in March 2008, the Veteran was noted to be a malingerer. Further, it appears that the Veteran believes he is entitled to VA disability benefits based not on his own experiences and current psychological state, but rather, because his brother who served in the same area as he did is receiving disability benefits. Given this evidence, the Board finds reason to question the credibility of the Veteran in his reporting of symptoms and reactions such that the Board places more weight on the VA examiners' findings than it does on the July/November 2007 diagnosis of PTSD contained in the VA treatment records. This is so because it is clear that the VA examiners' findings are based on a review of the record, interview and examination of the Veteran, and the results of psychological testing, whereas the VA clinician's diagnosis appears to be based solely on endorsements made by the Veteran, the credibility of which is questioned given that the Veteran indicated that the sole purpose for the evaluation was to obtain a diagnosis of PTSD. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed.Cir.2006) ("[T]he Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc."); Caluza v. Brown, 7 Vet. App. 498, 511 (1995) ("The credibility of a witness can be impeached by a showing of interest, bias, inconsistent statements, or, to a certain extent, bad character."), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Cohen, 10 Vet. App at 140 (stating that while a "PTSD diagnosis by a mental-health professional must be presumed . . . to have been made in accordance with the applicable DSM criteria as to both the adequacy of the symptomatology and the sufficiency of the stressor," there clearly exists an exception to his general rule when "evidence shows to the contrary"). In sum, the Board finds that the VA examiners' opinions that the Veteran does not meet the DSM-IV criteria for a diagnosis of PTSD outweigh the singular diagnosis of PTSD contained in the record, as the VA examiners clearly indicated where evidence sufficient to support a diagnosis was lacking and their opinions in this regard are based on more than just an interview with the Veteran. Indeed, the VA examiners were all in agreement that Veteran did not present the full constellation of symptoms necessary for a diagnosis of PTSD. Accordingly, the Board finds that the preponderance of the evidence of record fails to establish that the Veteran has a current diagnosis of PTSD that conforms to the DSM-IV criteria. As such, there is no basis upon which to award service connection for PTSD. See Cohen, 10 Vet. App. at 138; 38 C.F.R. § 3.304(f). With regard to the records showing that the Veteran had been prescribed Alprazolam for anxiety, the Board notes that the Veteran has not been diagnosed as having an anxiety disorder. The January 2012 VA examiner specifically indicated that the Veteran's reported symptoms did not warrant any Axis I diagnosis. Further, the Veteran's STRs fail to suggest the presence of anxiety or symptoms of any psychiatric disorder in service. At the time of his separation examination, the Veteran was clinically evaluated as being psychiatrically normal and he specifically denied depression, excessive worry, or nervousness of any sort. In light of this evidence, the Board finds no reason to remand the matter for the VA examiner to comment specifically on the notation of anxiety in the Veteran's VA treatment records, as the VA examiner considered whether the Veteran's reported symptoms were sufficient to support a diagnosis of any Axis I disorder, but found that they were not, and the evidence fails to suggest that the Veteran's anxiety symptoms are in any way related to service. Regarding the Veteran's Axis II diagnosis of a narcissistic personality disorder, personality disorders are not diseases or injuries under VA regulations and therefore are not disabilities for which service connection can be granted. 38 C.F.R. § 3.303(c) (2013); see Beno v. Principi, 3 Vet. App. 439, 441 (1992) (personality disorders are developmental in nature and are not considered as compensable disabilities under the terms of the rating schedule); Winn v. Brown, 8 Vet. App. 510, 516 (1996) (Secretary was within his statutory authority under 38 U.S.C. A.§ 1101(3) in not adding personality disorders to list of chronic diseases). There is also no evidence showing that an acquired psychiatric disorder was incurred or aggravated in service and superimposed upon the noted personality disorder. See Carpenter v. Brown, 8 Vet. App, 240 (1995); 38 C.F.R. §§ 4.9; 4.125(a), 4.127 (2013). In sum, the Board finds that the competent and probative evidence of record fails to establish that the Veteran has a currently diagnosed psychiatric disorder for which compensation is payable that is attributable to military service. Accordingly, service connection for an acquired psychiatric disorder, to include PTSD, must be denied. In reaching this conclusion, the Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. The Board is simply unable to identify a reasonable basis for granting service connection in this case. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 C.F.R. § 3.102 (2013). ORDER Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs