Citation Nr: 1339042 Decision Date: 11/26/13 Archive Date: 12/06/13 DOCKET NO. 09-31 118 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, including posttraumatic stress disorder (PTSD), major depression, and anxiety. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Brian J. Milmoe, Counsel INTRODUCTION The Veteran served on active duty from July 1956 to June 1960. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision entered in January 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Jurisdiction of the claims folder was subsequently transferred to the RO in Winston-Salem, North Carolina. It was most recently before the Board in July 2013, at which time it was remanded to the RO via the VA's Appeals Management Center (AMC) in Washington, DC, so that additional development could be undertaken. Following the AMC's completion of the requested actions, the case has been returned to the Board for further consideration. This appeal was processed using the Virtual VA and Veterans Benefits Management System utilizing paperless claims processing. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. Notice is taken that this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Major depression and an anxiety disorder, not otherwise specified, are etiologically related to the Veteran's period of active duty service. 2. The existence of PTSD due to an inservice stressor is not shown. CONCLUSIONS OF LAW 1. Major depression and an anxiety disorder, not otherwise specified, were incurred in service. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). 2. PTSD was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Major Depression & Anxiety Disorder Given the favorable disposition herein reached with respect to issues of entitlement to service connection for major depression and an anxiety disorder, the need for a discussion of the VA's compliance with its duties to notify and assist or prior remand directives as to those matters is obviated. Service connection will be granted if it is shown that the appellant suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury or disease in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. In addition, certain chronic diseases, including a psychosis, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). Service connection also may be granted for any disease initially 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). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). Alternatively, the nexus between service and the current disability may be satisfied by medical or lay evidence of continuity of symptomatology and medical evidence of a nexus between the present disability and the symptomatology. See Voerth v. West, 13 Vet. App. 117 (1999); Savage v. Gober, 10 Vet. App. 488, 495 (1997). Received by VA in May 2008 was the Veteran's original claim for service connection for PTSD and development of that claim by the RO revealed the existence of other psychiatric disorders involving major depression and an anxiety disorder. By prior action of the Board, the appellate issue involving PTSD was expanded to include service connection for all acquired psychiatric disorders. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). It is the Veteran's contention that he has major depressive and anxiety disorders related to service, citing the opinions offered by a VA examiner in June and August 2013 as supportive of his entitlement thereto. The Board concurs. The Veterans service medical records show that in September 1959 he was noted to have loss of weight, a feeling of being run down, and occasional headaches and poor appetite. The provisional diagnosis was general malaise, cause unknown. An October 1959 record shows that the Veteran was seen during service by a private doctor, and it was noted that he admitted to being a "nervous person." While there is no diagnosis of either major depression or anxiety in service treatment records or for years following service, the presence of anxiety and situational stress was clinically observed in April 1993, albeit during a period in which medical evaluation and treatment for colon cancer were in progress. There is also of record a June 2003 statement from the Veteran's daughter attesting to several disorders, including as pertinent here, the Veteran's depression. In or about April 2004, the existence of a major depressive disorder was diagnosed on the basis of a three to four month history of increasing symptomatology and further diagnoses of depression not otherwise specified, major depressive disorder, and major depressive episode were subsequently identified by private mental health professionals and VA clinicians. In an effort to identify the nature and relationship of these other psychiatric entities to military service of the Veteran, the Board by an earlier remand directed the AMC to afford him a VA examination and to obtain a medical opinion as to nexus of any indicated disorder during his service. That evaluation was conducted in June 2013 and, as pertinent, yielded diagnoses of major depression and an anxiety disorder not otherwise specified. Review of the claims folder indicated that the Veteran had received treatment for major depression for an extended period of time and that the anxiety disorder was associated with inservice incidents involving the Veteran's viewing of another sailor's death and his witnessing of a motor vehicle crash, with the Veteran's subsequent assignment to sleep in the same bunk as the deceased sailor and being referred to by the name of the deceased. Also, the VA examiner opined in an August 2013 addendum that it was at least as likely as not that the Veteran's major depression and his unspecified anxiety disorder were related to or had their onset in service. In sum, a medical professional following his in-person examination of the Veteran and a review of the entire claims file determined that in all probability that the Veteran's major depression and anxiety are of service onset or service related. There is other evidence pointing to the existence of depression and anxiety during postservice years, as well as the absence of identified symptoms in service or for years several years after service. On balance, however, the evidence supportive of entitlement outweighs the evidence to the contrary, and, as such, service connection for a major depressive disorder and an anxiety disorder, not otherwise specified, is warranted. (CONTINUED ON NEXT PAGE) PTSD Remand Compliance This matter was previously remanded by the Board in February 2012 and July 2103 in order to facilitate the conduct of additional evidentiary and/or procedural development. Among the requested actions were the conduct of a VA examination and obtaining a medical opinion as to the existence of PTSD and, if any, its relationship to an inservice stressor. All of the actions previously sought by the Board through its prior development requests now appear to have been completed as directed, and it is of note that neither the Veteran, nor his representative, contends otherwise. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notification obligation in this case was accomplished by way of the RO's correspondence, dated in June 2008, to the Veteran at his address of record and this was followed by the claim's initial adjudication in January 2009, in accord with Pelegrini. In light of the foregoing, and in the absence of any allegation of prejudice by the Veteran or his representative, the Board cannot conclude that any defect in the timing or substance of the notice provided affected the essential fairness of the adjudication, with resulting prejudice to the Veteran. VA has also provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The record includes at least a portion of the Veteran's service treatment and personnel records, although in connection with a prior VA compensation claim the RO in January 1999 concluded that a portion of those records were unavailable. Formal determinations were also entered by the RO in June 2003 and December 2008 as to the unavailability of data with which to verify certain alleged stressors of the Veteran leading to the onset of his PTSD. In addition, various medical examination and treatment reports compiled by VA and non-VA sources during postservice years, statements from the Veteran and his daughter, and other items of evidence are on file. Moreover, the Veteran has not made the RO, AMC, or Board aware of any additional evidence that needs to be obtained in order to decide fairly the claim herein addressed on its merits. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). The record indicates that the Veteran has been provided a VA examination in connection with his claim for service connection for PTSD herein addressed on the merits and no further VA examination is warranted at this time. The Veteran presents no argument in his most recent brief as to the adequacy of that prior VA medical examination, although he challenges the opinion reached by the VA examiner that a diagnosis of PTSD was not warranted. A full explanation as to why certain diagnostic criteria for entry of a PTSD diagnosis was furnished by the VA examiner in an August 2013 addendum to his examination report of June 2013. It is clear that the referenced VA examiner had conducted a full mental status evaluation and identified whether the Veteran met or did not meet each individual criterion outlined by the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, (4th ed. 1994) (DSM-IV) for entry of a PTSD diagnosis, and, on that basis, the VA examination and the record as a whole are sufficient to permit the Board to evaluate the merits of the claim presented, without seeking additional development. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(4). In view of the forgoing, the Board finds that VA has satisfied its duties to notify and assist the Veteran under the governing law and regulations. Analysis Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) which requires that a diagnosis of a mental disorder must be in conformity with the criteria DSM-IV criteria; a link, established by medical evidence, between current symptoms and an inservice stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). Service connection for PTSD requires a verified stressor unless a veteran engaged in combat and such combat is the alleged stressor. Id. Notice is taken by the Board that 38 C.F.R. § 3.304(f) was amended, effective from July 13, 2010, by liberalizing in certain circumstances the evidentiary standard for establishing the required inservice stressor leading to PTSD onset. See 75 Fed. Reg. 39843 (2010); see also 75 Fed. Reg. 41092 (2010) (correcting the effective date of the change to July 13, 2010). Under that change, 38 C.F.R. § 3.304(f) was modified effective from July 13, 2010, by liberalizing in certain circumstances the evidentiary standard for establishing the required inservice stressor leading to PTSD onset. See 75 Fed. Reg. 39843 (2010); see also 75 Fed. Reg. 41092 (2010) (correcting the effective date of the change to July 13, 2010). Under that change, 38 C.F.R. § 3.304(f) was amended to redesignate paragraphs (f)(3) and (f)(4) as paragraphs (f)(4) and (f)(5), respectively, and by adding a new paragraph (f)(3) as follows: If a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of posttraumatic stress disorder and that the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. For purposes of this paragraph, ''fear of hostile military or terrorist activity'' means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. The evidence necessary to establish the occurrence of a recognizable stressor during service to support a claim of entitlement to service connection for PTSD will vary depending on whether or not the veteran was "engaged in combat with the enemy." Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). Where it is determined, through recognized military citations or other supportive evidence, that the veteran was engaged in combat with the enemy and the claimed stressors are related to such combat, the veteran's lay testimony regarding claimed stressors must be accepted as conclusive as to their actual occurrence and no further development for corroborative evidence will be required, provided that the veteran's testimony is found to be "satisfactory," i.e., credible, and "consistent with the circumstances, conditions, or hardships of such service." Id. If the veteran did not engage in combat, as in this case, then his lay testimony, by itself, is insufficient to establish the alleged stressor(s). Instead the record must contain service records or other independent credible evidence to corroborate the veteran's account of in-service stressors. Dizolgio v. Brown, 9 Vet. App. 163, 166 (1996). If the claimed stressor is not combat-related, the veteran's lay testimony regarding in-service stressors is insufficient to establish the occurrence of the stressor and must be corroborated by credible supporting evidence. See Cohen v, Brown, 10 Vet. App. 128 (1997). Where a current diagnosis of PTSD exists, the sufficiency of the claimed inservice stressor is presumed; the Board can reject favorable medical evidence as to stressor sufficiency only on the basis of independent medical evidence, accompanied by an adequate statement of reasons or bases, and only after first seeking clarification of an incomplete examination report (whether or not such clarification is actually provided by the original examiner) pursuant to applicable VA regulatory provisions. Id. at 142-144. 38 U.S.C.A. § 1154(b) provides that, in the case of a veteran who engaged in combat with the enemy during a period of war and the claimed disease or injury is combat-related, lay evidence of inservice incurrence or aggravation of a disease or injury shall be accepted if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the lack of official record of such incurrence or aggravation during service. In this instance, the Veteran does not allege, nor does the record show, that the claimed disorder resulted from the Veteran engaging in combat against the enemy while in military service. To that extent, the pertinent provisions of 38 U.S.C.A. § 1154 are not for application. Here, the Veteran advances two primary stressors as the basis for the onset of his PTSD, one being his viewing of the death of a sailor and the other involving his observation of a fatal motorcycle wreck, neither of which is combat-related or the result of a hostile or any terrorist threat. The Board does not, however, herein reach the question of whether any alleged stressor actually occurred inasmuch as a diagnosis in conformity with the applicable DSM-IV criteria for PTSD is not indicated. While the record indicates that on one or more occasions a diagnosis or problem list entry of PTSD is shown in VA clinical notes compiled postservice and that on two occasions the Veteran was evaluated during 2008 by private medical professionals who entered a diagnosis of PTSD, the foregoing did not include a review of the DSM-IV criteria or a discussion as to which, if any, criteria were met and those which were not, and why. Based on the evidence now of record, this was accomplished in only one instance; specifically, the VA examination in June 2013, the report of which was amended in August 2013. That review and opinion were based not only on an in-person examination, but also a complete review of the Veteran's claims folder, all of which resulted in the conclusion, fully supported by a rationale, that the diagnostic criteria for PTSD, as outlined in Criteria B, C, D of the DSM-IV were not met. In particular, the VA examiner found that, while some symptoms of PTSD were present, the Veteran did not endorse sufficient symptoms to warrant a PTSD diagnosis. Although lay persons such as the Veteran are competent to provide opinions on some medical issues, the specific matter here (PTSD as a consequence of an inservice event) falls outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). To the extent that the Veteran states that he experienced physical and/or mental symptoms in service that he believes to have been related to PTSD, the Board notes that PTSD is a disorder that is not readily amenable to mere lay diagnosis, as the governing legal authority requires that a diagnosis pursuant to the DSM-IV criteria must be established by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau, supra; Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). The Veteran is not competent to self-diagnose his PTSD and he has not been shown to possess the requisite medical training, expertise, or credentials needed to render such a diagnosis or a competent opinion as to its point of origin. Otherwise, nothing in the record demonstrates that the Veteran received any special training or acquired any medical expertise in diagnosing and evaluating psychiatric disorders. King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir. 2012). In addition, to the extent his lay assertions and statements are competent and probative regarding the existence of relevant symptomatology during and/or after service, they are found to be outweighed by the more competent and probative medical opinions of 2013, which concluded that PTSD was not in fact present. As a preponderance of the evidence is against the Veteran's claim, his claim for a service connection for PTSD must be denied without application of the doctrine of reasonable doubt. 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for major depression and an anxiety disorder, not otherwise specified, is granted. Service connection for PTSD is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs