Citation Nr: 1338845 Decision Date: 11/25/13 Archive Date: 12/06/13 DOCKET NO. 10-00 719 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for an innocently acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) ATTORNEY FOR THE BOARD G. Jackson, Counsel INTRODUCTION The Veteran served on active duty from November 1976 to September 1992. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the RO. The Board remanded the case for additional development of the record in February 2012 and July 2013. In Clemons v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that a veteran's claim for PTSD was not limited only to the his lay diagnosis, but rather included any mental disability that could "reasonably be encompassed by several factors including: the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim." 23 Vet. App. at 5 (2009). 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. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. FINDINGS OF FACT 1. The Veteran is not shown to have a diagnosis of PTSD. 2. The Veteran is not shown to have manifested complaints or findings referable an innocently acquired psychiatric disorder in service or for many years thereafter. 3. The currently demonstrated depressive disorder is not shown to be due to event or incident of her period of active service. CONCLUSIONS OF LAW 1. The Veteran does not have a disability manifested by PTSD due to disease or injury that was incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2013). 2. The Veteran's disability manifested by depression is not due to a disease or injury that was incurred in or aggravated by service; more may any be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b) (2013). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Pelegrini, 18 Vet. App. at 121. In this case, in an October 2008 letter issued prior to the decision on appeal, the Veteran was provided notice regarding what information and evidence is needed to substantiate her claim for service connection, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letter advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. In February and April 2012 letters issued subsequent to the decision on appeal, the Veteran was also provided notice regarding what information and evidence is needed to substantiate her claim for service connection for PTSD, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letters advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. After issuance of the February and April 2012 letters and opportunity for the Veteran to respond, the February 2013 (and most recently, September 2013) Supplemental Statement of the Case (SSOC) reflect readjudication of the claim. Hence, the Veteran is not shown to be prejudiced by the timing of this notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also 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 in an SOC or SSOC, is sufficient to cure a timing defect). In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records as well as all identified and available VA and private medical records are in the claims file and were reviewed by both the RO and the Board in connection with his claim. The Veteran has not identified any other outstanding records that are pertinent to the issue currently on appeal. In addition, the Veteran was afforded (most recently) a VA examination in May 2012 in connection with her claim for service connection. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As will be discussed, the Board finds that the examination and medical opinion obtained in this case is adequate, as it is predicated on a full reading of the service treatment records as well as the private and VA medical records contained in the Veteran's claims file. The examiner considered all of the pertinent evidence of record, including the contentions and statements of the appellant and the medical literature, and provided a complete rationale for the opinion stated, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). Finally, the Board is aware that this claim of service connection was previously remanded in February 2012 and July 2013 for additional development of the record. The February 2012 remand directed that relevant outstanding treatment records should be obtained and the Veteran should undergo VA examination to evaluate the etiology of her claimed psychiatric disorder. The July 2013 remand directed that outstanding treatment records, not previously requested, be obtained and associated with the claims file. In this case, relevant treatment records have been associated with the claims file (Virtual VA claims file) and examination with thorough and detailed opinion regarding etiology has been performed. Therefore, the Board finds that there has been substantial compliance with the February 2012 and July 2013 remand instructions. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (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 summary, the Veteran was notified and aware of the evidence needed to substantiate her claim, the avenues through which she might obtain such evidence, and the allocation of responsibilities between her and VA in obtaining such evidence. She was an active participant in the claims process submitting evidence and argument and presenting for a VA examination. Thus, the Veteran was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notices is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Laws and Regulations Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). Background The service treatment records are negative for complaints or findings referable to a psychiatric disorder. The Veteran specifically denied experiencing any mental health difficulties in the October 1992 report of medical history associated with her separation examination. The October 1992 separation examination noted that the psychiatric evaluation was normal. Subsequent to service, a March 1994 report of VA examination documents no complaints of a psychiatric disorder. Examination of neurological/psychiatric systems was normal. A July 1995 report of VA examination reflects that the Veteran was alert, mentally clear and in no acute distress. She did not demonstrate nervousness or body habit as suggested of hyperthyroidism. A June 2005 VA treatment record indicated that the Veteran declined a depression screening. It was documented that she had previous treatment for depression, but none at the present time. Additionally, the screening for PTSD was negative. A November 2006 VA weight management treatment record documents the Veteran's report of PTSD. She was provided with handouts on dealing with stress, anxiety and depression and taking control of her thoughts, feelings and behavior. The private treatment records from May 2007 to August 2012 document the medical care that the Veteran received for her psychiatric condition. A May 2007 treatment record noted a diagnosis of major depression (MD). The psychiatrist indicated that the Veteran had previously been treated by a private psychiatrist in 2000 and also saw a psychologist. A subsequent May 2007 report of treatment reflected that the Veteran had an Axis I diagnosis of chronic major depression. She reported that her service stressors were the scud missiles, the chemical warfare alerts, donning uniforms for gas and chemical alerts, the soot in the air from oil fires, being afraid, the living conditions, seeing the damage of the scud attacks and being away from home. The Veteran reported that she began having nightmares in service, but could not remember exactly when. She reported having panic attacks (once per month, lasting five minutes) and averaging approximately 4-5 hours of sleep per night. She was easily startled, hypervigilant and could not tolerate anyone behind her. She rarely socialized with family and friends, and her memory was severely impaired. "Her anger, sadness and fear [came] upon her without the knowledge of why 25 percent of the time indicating that her prefrontal cortex [was] dysfunctional." The Veteran reported being depressed 50 percent of the time with no energy and little interest in things. She had crying spells 50 percent of the time and was easily angered and agitated. The psychiatrist concluded that "because of her service-connected major depression, [the Veteran] [was] moderately comprised in her ability to sustained social relationships and ]was] moderately compromised in her ability to sustain work relationships. A May 2012 report of treatment reflected that the Veteran had an Axis I diagnosis of chronic major depression (there were no other Axis I diagnoses documented). Additionally, the report was wholly unchanged from the May 2007 report of treatment. The psychiatrist concluded that "because of this service-connected PTSD, [the Veteran] [was] moderately compromised in her ability to sustain social relationships but she [was] moderately comprised in her ability to sustain work relationships." In the report of a May 2012 VA examination, the psychologist opined that the Veteran did not have a diagnosis of PTSD that conformed to the DSM-IV criteria (i.e., the Veteran did not meet the full criteria for PTSD). However, the psychologist found that the Veteran did have a diagnosis of depressive disorder, NOS (not otherwise specified). The psychologist thoroughly documented the Veteran's relevant social/marital/family history, relevant occupational and education history and relevant mental health history. Of particular note, the Veteran was noted to have received no mental health treatment during her period of service and to have specifically denied experiencing any mental health difficulties in the October 1992 report of medical history associated with her separation examination. The psychologist noted the May 2007 private treatment record indicating that the Veteran had received psychiatric treatment in 2000; however, it was noted records of such treatment were not in the claims file. The psychologist also noted that all VA primary care screenings had been negative for PTSD and depression, "even some that were given while she was seeing her current psychiatrist and being treated for depression." The Veteran reported that this discrepancy was due to her embarrassment about revealing her depression to her primary care physician and risk that her coworkers at the VA medical center would find out about it. It was also noted that the Veteran received treatment from a private psychiatrist (located approximately an hour away from where she lived). The VA psychologist noted that the private psychiatrist seems to make some rather extreme statements regarding the Veteran's psychiatric disorder without providing psychological or medical testing to support such statements. Additionally, the VA psychologist noted that, in the private psychiatric treatment records, interview or complaint/symptom/data collection was done for roughly 5-10 minutes by the CNA (certified nurse aid) (reportedly, CNAs only had to have 4 months of post-high school education in the state), not the psychiatrist. Little detail was listed in the treatment notes. As an example, where nightmares were endorsed, there is no information as to content. As to stressors, such things as "being away from home" and "living conditions" were listed that would not at all be considered actual trauma according to the DSM-IV. On examination, the examiner concluded that the Veteran did not meet DSM-IV symptom criteria for PTSD. The psychologist explained that, while she did have some mild trauma experiences in the Gulf, the Veteran had no mental health issues over a year later upon her military discharge. Additionally, the psychologist noted that, while the Veteran's current private mental health records referred to nightmares at times, there was no indication that the nightmares were actual trauma because there was no description of their content. Additionally, the psychologist found it unusual that the Veteran seemed to minimize or deny any PTSD issues related to an actual significant (though non-military) trauma of being shot by a gang member in an initiation ceremony. The Veteran reported that she did not have upsetting intrusive memories of the trauma, indicating that staying busy with work helped in this regard. The Veteran was noted to have endorsed a variety of unpleasant thoughts that she often dwelled on, but were not traumatic in nature. Rather, they were merely other unpleasant or stressful life experiences in both the present and past. Thus, the Veteran seemed to lack re-experiencing phenomena. The Veteran did have some mild avoidance behavior, but this did not significantly impact her life. The psychologist found that other avoidance symptoms were better explained by the Veteran's depressed mood and/or her personality/behavior pattern since childhood. To the extent that the Veteran did describe some periodic startle symptoms and hypervigilance, the examiner found such symptoms unlikely related to Gulf War experiences and better explained by the fact that she was a woman, living alone who had experienced a gang related shooting. The psychologist also opined that the Veteran's depression that had been diagnosed was less likely than not due to her military service. In this regard, the psychologist noted that the Veteran had no complaints, treatment for or diagnosis of mental health issues during her period of service. Additionally, the psychologist noted that the first mental health treatment subsequent to service reportedly occurred in 2000, approximately 8 years after her period of service. While there was no actual documentation of treatment in 2000, there was also no information linking the reported treatment for mental health issues to her period of military service. The examiner also explained that, in more recent years, the VA treatment records screenings for depression and PTSD had been negative. Finally, the psychologist noted that the private psychiatrist made some rather extreme claims that strain credibility. Further, the Veteran could not articulate a military cause of her present depression (a full 20 years after her discharge). Thus, the psychologist concluded that the diagnosed depressive disorder was less likely than not incurred in or caused by the claimed in-service injury, event or illness. Analysis PTSD There are particular requirements for establishing entitlement to service connection for PTSD in 38 C.F.R. § 3.304(f) that are separate from those for establishing service connection generally. Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). Those requirements are: (1) a diagnosis of PTSD in accordance with 38 C.F.R. § 4.125; (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. 38 C.F.R. § 3.304(f). If the alleged stressor is not combat related, the Veteran's lay testimony, by itself, is not sufficient to establish the occurrence of the alleged stressor. Instead, the record must contain credible supporting evidence that corroborates the Veteran's testimony or statements. 38 C.F.R. § 3.304(f); Stone v. Nicholson, 480 F.3d 1111 (Fed. Cir. 2007); Cohen v. Brown, 10 Vet. App. 128, 147 (1997); Moreau v. Brown, 9 Vet. App. 389, 395 (1996). As an initial matter, the Board notes that the Veteran did not engage in combat with the enemy and the combat provisions of 38 U.S.C.A. § 1154 are not applicable in this case. As noted, the Veteran claims that she had PTSD due to the scud missiles launchings, the chemical warfare alerts, donning uniforms for gas and chemical alerts, the soot in the air from oil fires, being afraid; the living conditions, seeing the damage of the scud attacks and being away from home. Regardless of the Veteran's claimed stressors, however, her claim for PTSD must be denied because the preponderance of the evidence establishes that she does not have a diagnosis of PTSD based on any service-related stressor. Specifically, the psychologist who conducted the May 2012 VA psychiatric examination concluded that the Veteran did not meet the full DSM-IV criteria for PTSD. The psychologist explained that, while she did have some mild experiences and endorsed a variety of unpleasant thoughts that she often dwelled on, they were not traumatic in nature. Rather, they were merely other unpleasant or stressful life experiences in both the present and past and therefore, the Veteran lacked re-experiencing criteria for PTSD (Criteria B). Additionally, the Veteran's mild avoidance behavior did not significantly impact her life. In any event, the psychologist found that her avoidance symptoms were better explained by the Veteran's depressed mood and/or her personality/behavior pattern since childhood and that her periodic startle symptoms and hypervigilance were unlikely related to Gulf War experiences and better explained by the fact that she was a woman who was living alone and had experienced a gang related shooting. Additionally, the Board notes that there is not any other documented diagnosis of PTSD in the record. The June 2005 VA treatment record reflects that the PTSD screen was negative. Further, even acknowledging the private psychiatrist's unsupported statement in May 2012 that "because of this service-connected PTSD, [the Veteran] [was] moderately compromised in her ability to sustain social relationships and [was]moderately comprised in her ability to sustain work relationships," the Board points out that, in that May 2012 record, the psychiatrist only diagnosed the Veteran with chronic major depression (PTSD was not diagnosed and there were no other Axis I diagnoses documented). As to the Veteran's assertions that she has PTSD, she is competent to testify about her symptoms, but the question of whether a Veteran has PTSD based on a claimed in-service stressor is a medical issue. See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"); 38 C.F.R. § 3.304(f) (specifically requiring medical evidence diagnosing PTSD). Consequently, the Veteran's statements as to whether she has PTSD are not competent. Without a diagnosis of PTSD, the Veteran does not meet the criteria for the grant of service connection for PTSD. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Other Diagnoses Clemons v. Shinseki also stands for the proposition that a claimant without medical expertise cannot be expected to precisely delineate the diagnosis of his mental illness. Id at 4-5. In this case, the Veteran has also been diagnosed with chronic major depression/depressive disorder, NOS. The Veteran asserts that her current psychiatric disability onset due to event or incident of her period of service. In the May 2007 (and reiterated in May 2012) report of private treatment, the psychiatrist concluded that "because of her service-connected major depression, [the Veteran] [was] moderately comprised in her ability to sustained social relationships and [was] moderately compromised in her ability to sustain work relationships." To the extent that this statement may represent an opinion linking the psychiatric disorder to service, a rationale for such a statement was lacking . In this regard, the psychiatrist provided no factual documentation to support his statements. See Miller v. West, 11 Vet. App. 345, 348 (1998) (a case where medical statements made regarding a current diagnosis appeared to be nothing more than a bare medical conclusion without a factual predicate in the record and were insufficient to establish a current disability related to service). Accordingly, the Board affords these statements little probative value. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). By contrast, in the May 2012 VA examination, the psychologist found that it was less likely than not that the current depressive disorder was incurred in or caused by the claimed in-service injury, event or illness. In reaching this conclusion, the psychologist noted the lack of in-service complaint or symptomatology and the length of time between service and her first report of complaints of psychiatric symptomatology (in this case approximately 8 years after her period of service, see Maxon v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000)), in finding that the private psychiatrist had made some rather extreme claims that were unsubstantiated by the record ("strain credibility") and the Veteran's lay assertions (though noting that the Veteran could not articulate a military cause of her present depression a full 20 years after her discharge). The Board notes that this opinion was based on a thorough review of the Veteran's records, including the Veteran's history, and sound medical principles. Thus, the Board finds that the May 2012 VA examination opinion did not suffer from the same flaws as those of the May 2007 (reiterated in May 2012) private psychiatrist and is entitled to greater probative weight. Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The only other evidence supporting the claim are the Veteran's own lay assertions. Here, the Veteran is competent to describe her psychiatric symptoms. The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. Buchanan v. Nicolson, 451 F.3d 1331 (Fed. Cir. 2006). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). To the extent that the Veteran attempts to establish a nexus of ongoing symptoms since service (38 C.F.R. § 3.303(a)), such assertions are not found to be credible. The October 1992 examination disclosed that psychiatric clinical evaluation was normal. This finding is inconsistent with continuing symptoms. A medical opinion following an evaluation is far more probative than a lay report that she has depression. Following service, there was no indication of symptoms referable to depression until June 2005 (indicating Veteran declined depression screen but had received treatment for depression in the past). In addition, when examined in March 1994 and July 1995, no reference was made to psychiatric symptoms as part of her past history. Here, the absence of an entry in a record is evidence against the existence of a fact since it would ordinarily be noted as part of the recorded medical history. See, Bucznski v. Shinseki, 24 Vet. App. 221 (2011). Thus, her reports of on-going symptoms are inconsistent with the contemporaneous records and are not credible. See Layno v. Brown, 6 Vet. App. 465 (1994). Regardless, the Board finds that the probative evidence regarding etiology clearly weighs against a finding that the current innocently acquired psychiatric disorder had its onset during to service. Thus, the Board finds that the lay opinion is less informed, less probative and less credible than the reasoned medical opinion. The Board finds the opinion of the VA psychologist in the May 2012 to be most probative. The VA psychologist is a medical professional who reviewed the claims file, considered the reported history and performed an examination of the Veteran. The psychologist used his expertise in reviewing the facts of this case and determined that the current psychiatric disorder less likely than not was due to event or incident of the Veteran's period of service. It is clear that the psychologist fully understood the basis for the Veteran's claim yet still determined, after reviewing the facts of the case, that the current psychiatric disorder was related to causes other than the Veteran's period of service. The Veteran has not suggested that the May 2012 examination was performed in an insufficient manner. Lastly, major depression is a psychosis or one enumerated as chronic disease within the meaning of 38 U.S.C.A. § 1101 and 38 C.F.R. § 3.309. See 38 C.F.R. § 3.384. However, the provisions of 38 C.F.R. § 3.303(b) are not applicable absent pertinent findings in service or for many years thereafter. The Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). ORDER Service connection for an innocently acquired psychiatric disorder, to include PTSD is denied. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs