Citation Nr: 1339224 Decision Date: 11/27/13 Archive Date: 12/13/13 DOCKET NO. 10-18 456A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), a depressive disorder, and an anxiety disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Cherry, Counsel INTRODUCTION The Veteran served on active duty from October 1987 to February 1988 and from October 1990 to July 1991. This case comes before the Board of Veterans Appeals (the Board) on appeal from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. In January 2012 and November 2012, the Veteran testified at hearings before a Decision Review Officer and the undersigned Veterans Law Judge, respectively, and transcripts of these hearings in the claims file and Virtual VA, respectively. In June 2013, the Board determined that the appellant's claim is considered a claim of entitlement to service connection for an acquired psychiatric disorder, including PTSD, a depressive disorder, and an anxiety disorder other than PTSD, and remanded the claim for further development. A review of the claims file includes the paper and electronic records. FINDING OF FACT The evidence for, and the evidence against, the Veteran's claim for service connection for an acquired psychiatric disorder is in relative equipoise. CONCLUSION OF LAW The Veteran's current acquired psychiatric disorder was incurred in or is otherwise etiologically related to her military service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). In light of the favorable decision herein as to entitlement to service connection, the Board finds that any deficiencies in notice or assistance were not prejudicial to the Veteran. Legal Criteria Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active duty. See 38 U.S.C.A. §§ 1110, 1131. Service connection may also be warranted 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). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The existence of a current disability is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F. 3d 1328 (1997). To be present as a current disability, the claimed condition must be present at the time of the claim for benefits, as opposed to sometime in the distant past. Gilpin v. West, 155 F. 3d 1353 (Fed. Cir. 1998). The Gilpin requirement that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim, even though the disability subsequently resolves. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Service connection for PTSD requires medical evidence diagnosing the disorder in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between the current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). If a stressor claimed by a veteran is related to that claimant'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 PTSD 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 claimant'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 claimant 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 claimant's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. Id. This regulation does not apply in this case, however, since the appellant is not claiming a stressor based on fear of hostile military or terrorist activity. In non-combat cases of PTSD involving an allegation of personal assault, more particularized requirements are established to verify whether the alleged stressor actually occurred. Patton v. West, 12 Vet. App. 272, 278-80 (1999). In this regard, evidence from sources other than the Veteran's service records may corroborate the appellant's account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, mental health counseling centers, hospitals, or physicians; and/or statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is another type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to, a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. 38 C.F.R. § 3.304(f)(3). Analysis The Board has reviewed all of the evidence of record, to include the VA, private, and service treatment records and VA examination reports. The weight of the evidence is against a finding that the Veteran has or has had an acquired psychiatric disorder during the appellate term. There is conflicting medical evidence on whether the Veteran has or has had an acquired psychiatric disorder during the appellate term. While the Board is not free to ignore the opinion of a treating physician, neither is it required to accord it additional weight. Guerrieri v. Brown, 4 Vet. App. 467, 471-73 (1993). The United States Court of Appeals for the Federal Circuit (the Federal Circuit) has declined to adopt a "treating physician rule," which would give preference, i.e., additional evidentiary weight, to this type of evidence. White v. Principi, 243 F.3d 1378 (Fed. Cir. 2001). In assessing medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. Prejean v. West, 13 Vet. App. 444, 448-49 (2000). The Court has also held that the value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999). Thus, a medical opinion is inadequate when it is unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995). A medical opinion may not, however, be discounted solely because a medical professional did not review the claims file. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Rather, the question is whether the medical professional was informed of all relevant facts in rendering a medical opinion. Id. The Court has held that factors for consideration in assessing the medical competence to render an opinion as to medical causation include specific expertise in the relevant specialty. See Black v. Brown, 10 Vet. App. 279, 284 (1997). The VA current list reflects a diagnosis of neurotic depression. This assessment was made by a nurse practitioner in April 2007. In September 2009, a VA psychologist diagnosed depression not otherwise specified and sleep disorder symptoms. A December 2009 VA examination report shows no diagnosis of an acquired psychiatric disorder. A July 2010 VA treatment record shows a diagnosis of a depressive disorder unspecified. Similarly, in July 2010, a VA psychologist diagnosed a depressive disorder. That diagnosis was supported by two psychological tests - a brief suicide risk assessment and PHQ-9 (patient health questionnaire 9). A September 2010 VA treatment record shows that a social worker diagnosed major depressive disorder, rule out obsessive compulsive disorder, and rule out panic disorder. VA treatment records show that in September 2011 the assessment included weight gain with some depressive features. In October 2012, a VA physician assistant diagnosed depression based on one psychological test - PHQ-2 (patient health questionnaire 2). A June 2012 VA examination report shows no diagnosis of an acquired psychiatric disorder. A February 2013 VA treatment record reflects that the Veteran's symptoms were seasonal affective problems and concerns about a history of depression. A February 2013 VA treatment record shows a diagnosis of PTSD and major depression based on a mental status evaluation. That report was signed by nurse practitioner and cosigned by a psychiatrist. In March 2013, that same nurse practitioner diagnosed PTSD and major depression based on a mental status evaluation. An April 2013 VA treatment record shows that a social worker diagnosed PTSD based on a mental status evaluation and one psychological test - the PCL-C (PTSD checklist, civilian version). Vet Center treatment records show a diagnosis of PTSD and anxiety and depression symptoms. The basis of the diagnosis of PTSD is not given. An April 2013 private treatment record shows diagnoses of PTSD, depression, and anxiety. The Veteran underwent a VA psychological consult to include psychological testing in August 2013 in conjunction with the August 2013 VA examination. The trauma symptom inventory was administered in order to assess symptoms related to traumatic events. The psychologist noted that the Veteran, however, achieved a very high score on the atypical response validity scale, reflecting generalized over-endorsement of all items, specific endorsement of unusual items, or relatively accurate reporting of a psychotic or disorganized state. The psychologist stated that the level of endorsement on the Veteran's profile indicated either an attempt to present herself as especially symptomatic or may represent a psychotic disorder, either of which invalidated the results of this measure. The personality assessment inventory was administered in order to help clarify the diagnosis. The psychologist indicated that this measure provided a number of validity indices that were designed to provide an assessment of factors that could distort the results of testing. The psychologist noted that the Veteran did attend appropriately to item content and responded in a consistent fashion to similar items. The psychologist added that with respect to negative impression management, however, there were indications that she endorsed items that present an unfavorable impression. The psychologist concluded that this result raised the possibility of some (perhaps intentional) exaggeration of complaints and problems and that patterns of this type were relatively infrequent among bona fide clinical patients. The psychologist added that although this pattern did not necessarily indicate a level of distortion that would render the results uninterpretable, the interpretive hypothesis presented in this report may over-represent the extent and degree of significant test findings in certain areas. The psychologist indicated that there were the following diagnostic possibilities suggested by the configuration of the personality assessment inventory scale scores: major depressive disorder, single episode, unspecified; alcohol dependence; PTSD; obsessive-compulsive disorder; somatization disorder; rule out schizophrenia, undifferentiated type; rule out social phobia; rule out generalized anxiety disorder; rule out intermittent explosive disorder; rule out cognitive disorder not otherwise specified; rule out bipolar II disorder; paranoid personality disorder; rule out borderline personality disorder; rule out schizotypal personality disorder; and rule out personality disorder not otherwise specified. The psychologist concluded that based on the information obtained from the Veteran during the interview as well as the results of the trauma symptom inventory and the personality assessment inventory, reliable diagnoses cannot be determined at this time. The psychologist indicated that although the Veteran described significant symptoms of several psychiatric disorders, including PTSD, anxiety, depression, and obsessive-compulsive disorder, testing results indicated that she was either intentionally or unintentionally over-reporting her symptoms. The August 2013 VA examination report reflects that the examiner stated on page one of the examination report that the Veteran did not have a diagnosis of PTSD that conformed to the DSM-IV criteria based on today's evaluation and that she does not have any other mental disorder that conformed with DSM-IV criteria. The examiner opined that it was not possible to establish any psychiatric diagnosis, to include a diagnosis of PTSD, depression, or an anxiety disorder. The examiner noted that the Veteran had reported subjective symptoms to clinicians of a number of psychiatric disorders including PTSD and to clarify the diagnosis, psychological testing was requested. The examiner indicated that the results of the objective psychometric assessment were invalid so that it was not possible to establish any psychiatric diagnosis. The examiner concluded that it was not possible to establish a psychiatric disorder caused by or persistently aggravated by military service. As shown above, there is conflicting evidence regarding the presence of a current acquired psychiatric disorder. While the August 2013 VA opinion which includes extensive psychological testing , and review of the claims folder concluded that the Veteran did not have a current acquired psychiatric disability, the Board can not overlook the diagnoses and reporting of symptomatology by treating medical providers - psychologists, social workers, a nurse practitioner, a family therapist, a counselor, a physician assistant, and a psychiatrist - simply because they did not review the claims file or because some of them are not psychologists or psychiatrists. These opinions are fairly consistent in describing PTSD and depression which appears to have either began during, or was aggravated by, the Veteran's service in the Persian Gulf as show in various lay statements provided by her fiancé and other acquaintances. The Veteran's PTSD appears, at least in part, to have been the result of a fear of hostile or terrorist activity. Accordingly, a grant of service connection is warranted. ORDER Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, a depressive disorder, and an anxiety disorder is granted. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs