Citation Nr: 1339236 Decision Date: 11/27/13 Archive Date: 12/13/13 DOCKET NO. 12-17 325 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), major depression, and bipolar II disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD S.J. Janec, Counsel INTRODUCTION The Veteran served on active duty from February 1975 to February 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, that denied service connection for a mental disorder, hypogonadism, gastroesophageal reflux disease, seizures, sleep apnea, and PTSD. In November 2009, the Veteran submitted a notice of disagreement and subsequently perfected his appeal in June 2012. The Board notes the only copy of the VA Form 9 in the Veteran's claims file is dated by the Veteran in May 2011, but time stamped as received by VA in June 2012. The timestamp date of June 2012 would render the Substantive Appeal untimely. However, inasmuch as the RO has taken actions to indicate to the Veteran that the present issue is on appeal (including scheduling him for a Board hearing), and it took no steps to close the appeal, the requirement that there be a timely Substantive Appeal is deemed waived. See Percy v. Shinseki, 23 Vet. App. 37 (2009); Gonzalez-Morales v. Principi, 16 Vet. App. 556 (2003) (per curiam order). The Board notes that the Veteran originally filed a claim of entitlement to service connection specifically for major depression, PTSD, generalized anxiety disorder, obsessive compulsive disorder, and panic attacks. Although not expressly claimed by the Veteran, the Board is expanding his original claim for service connection to include all acquired psychiatric disorders. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (a claimant without medical expertise cannot be expected to precisely delineate the diagnosis of his mental illness; he filed a claim for the affliction his mental condition, whatever it is, causes him). Accordingly, the issue has been recharacterized above. In May 2013, the Veteran and his wife presented sworn testimony during a Travel Board hearing in Detroit, Michigan, that was presided over by the undersigned Acting Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's claims file. In July 2013, the Board remanded the claim for further development. The Board finds that the requested development has been substantially accomplished. As such, the Board concludes that further remand is not necessary. Stegall v. West, 11 Vet. App. 268 (1998). D'Aries v. Peake, 22 Vet. App. 97 (2008) (only substantial, and not strict, compliance with the terms of a Board remand is required). Please note 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. The Veteran did not serve in combat and his alleged stressor does not relate to fear of hostile or terrorist military activity. 2. The most probative evidence shows that the Veteran does not have PTSD based on a verified stressor, and the Veteran's currently manifest psychiatric disability of major depression did not have its onset in service and was initially diagnosed more than one year after discharge. 3. The Veteran's current diagnosis of bipolar II disorder had its onset during active service. CONCLUSION OF LAW Bipolar II disorder, but no other currently diagnosed psychiatric disorder, was incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.304(f) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, a pre-decisional notice letter in February 2008 complied with VA's duty to notify the Veteran with regards to his claim. Specifically, this letter apprised the Veteran of what the evidence must show to establish entitlement to the benefit, what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the Veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the Veteran's behalf. It also detailed how disability ratings and effective dates are assigned. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Hence, the duty to notify has been satisfactorily met. Regarding the duty to assist, VA obtained the Veteran's available service treatment records, informed him that full records were not available and gave him the opportunity to submit any records in his possession. His post-service private and VA medical records were obtained, he was provided a VA examination. The examination is sufficient because it involved a review of the file, and a thorough evaluation. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); 38 C.F.R. § 3.159(c)(4). The Veteran has not identified any additional pertinent medical records, which have not been obtained and associated with the claims folder. VA has no duty to inform or assist with respect to the procurement of relevant records that was unmet. 38 C.F.R. § 3.159(c)(1)-(3). Thus, the Board finds that VA's duty to assist has also been met. II. Analysis Service connection may be established for a disability resulting from injury suffered or disease contracted in the line of duty in active service or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2013). Evidence of continuity of symptomatology of a chronic disability identified in 38 C.F.R. § 3.309(a) from the time of service until the present is required where the chronicity of a condition manifested during service has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b) (2013); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for a disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d) (2013). Certain chronic disabilities, such as a psychosis, if manifest to a degree of 10 percent within one year after separation from active duty, may be presumed to have been incurred in active service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2013). Regulations provide that a veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b) (2013). 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 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415 (1998); Cuevas v. Principi, 3 Vet. App. 542 (1992). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between 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) (2013); Cohen v. Brown, 10 Vet. App. 128 (1997). Diagnoses of mental disorders conform to the fourth edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) and if a diagnosis is not supported by the findings on the examination report, the rating agency shall return the report to the examiner to substantiate the diagnosis. 38 C.F.R. § 4.125(a) (2013). The DSM-IV provides two requirements as to the sufficiency of a stressor: (1) A person must have been exposed to a traumatic event in which "he person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others and (2) the person's response must have involved intense fear, helplessness, or horror. American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). The presence of a recognizable stressor is the essential prerequisite to support a diagnosis of PTSD. Zarycki v. Brown, 6 Vet. App. 91 (1993). 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 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 veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 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. 38 C.F.R. § 3.304(f)(3) (2013). In adjudicating a claim, the Board must assess the competence and credibility of the claimant. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362 (2005). The Board also has a duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362 (2001). Competency of evidence must be distinguished from weight and credibility, which are factual determinations in determining the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67 (1997). Although interest may affect the credibility of testimony, it does not affect competency to testify. Cartwright v. Derwinski, 2 Vet. App. 24 (1991). It is the responsibility of the Board to determine the probative weight to be assigned among multiple medical opinions in a case, and to state reasons or bases for favoring one opinion over another. Winsett v. West, 11 Vet. App. 420 (1998). The probative value of a physician's statement is dependent, in part, upon the extent to which it includes clinical data or other rationale to support the opinion. Bloom v. West, 12 Vet. App. 185 (1999). If all the evidence is in relative equipoise, reasonable doubt will be resolved in the claimant's favor, and the claim will be granted. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2013). However, if the preponderance of the evidence is against the claim, the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Initially, the Board observes that the Veteran did not serve in combat during his service and his alleged stressor does not relate to such. He has alleged that he experienced a significant stressor when his job responsibilities were changed in 1993 prior to his retirement. His service treatment records are not available for their review in their entirety; however, the Veteran has stated that he did not seek treatment for a psychiatric disorder during his military service. The Board found that the Veteran and his wife provided competent and credible written and oral statements regarding his experience of depressive symptoms during his last year of military service. Post-service psychiatric treatment records reflect that the Veteran has been diagnosed with major depression and rule out PTSD. Treatment reports from C.R., M.D., indicate that the Veteran initially sought treatment for depression and anxiety in 1996 or 1997. A November 2000 treatment record indicated that the Veteran stated that he had been depressed "but not like this." He reported that he used to drink a lot during his military service. A May 2002 treatment record noted that the Veteran reported that his depression began when he got out of the service. Dr. R. noted in a May 2008 letter that according to the Veteran he had "suffered this illness since his discharge from the military service." The diagnosis was major depression. In a May 2002 private treatment record, the Veteran noted significant losses, major life changes or stressors were that his father-in-law died three weeks ago. He did not mention his military service, and it was noted that his "father suicide" when he was a newborn. A November 2010 private psychological evaluation by M.J.V. Ph.D., indicated that the Veteran had major depression with mild cognitive impairment secondary to emotional status. The Veteran gave a history of problems with anxiety and depression which began about 1995. He acknowledged that he began to see a psychiatrist in 1997 or 1998. Upon VA examination in August 2013, the examiner concluded that the Veteran did not meet the criteria for a diagnosis of PTSD. The diagnosis was bipolar II disorder. The examiner opined that it was at least as likely as not that the Veteran had a 5% aggravation of preexisting depressive symptoms of bipolar II disorder in 1993 when his job was changed in the military and he lost his staff due to those changes. The examiner also noted that the Veteran initially sought mental health treatment in 1997. The Board concludes that the evidence does not support a finding that the Veteran has PTSD. As detailed above, the Veteran did not serve in combat and his reported stressor has been determined to be insufficient to support a diagnosis of PTSD. Upon VA examination in August 2013, it was determined that the Veteran did not have PTSD. Hence, in the absence of a current diagnosis of PTSD based on a verified stressor, service connection for the disability may not be granted. 38 C.F.R. § 3.304(f). Additionally, although the Veteran and his wife have stated that his depressive symptoms began during his military service, the Veteran has clearly stated, and the medical records confirm, that he was not diagnosed with a depressive disorder until 1996 - more than one year after his discharge from military service. Notably, the early reports (as detailed above) do not indicate that the Veteran experienced significant mental impairment during his military service. The Board notes that a prolonged period without documented medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or disease was incurred in service that resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Again, to the extent that the Veteran and his spouse have alleged continuity of symptomatology since discharge, the Board finds that they are competent to provide testimony as to his having experienced depressive symptoms during and after service. Charles v. Principi, 16 Vet. App. 370 (2002); see also, e.g., Layno v. Brown, 6 Vet. App. 465, 469 (1994) (a veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses). However, they are not competent to diagnose a psychiatric disorder or to attribute his complaints to a specific cause. Id. Simply stated, the Veteran's and his wife's opinion regarding the presence or etiology of a psychiatric disability, in service or shortly thereafter lacks significant probative value and it does not constitute competent medical evidence. Psychiatric diseases are complex disorders that require specialized training and testing for a determination as to diagnosis and causation, and it is therefore not susceptible of lay opinions on etiology alone. Hence, the Veteran's statements therein cannot be accepted as competent evidence sufficient to establish service connection. See Jandreau, supra. See also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (a pecuniary interest may affect the credibility of a claimant's testimony). The Board has considered the statements by the private examiners in the Veteran's treatment reports noting that the Veteran stated that his depression began during military service. However, those statements were a recitation of a history provided by the Veteran. As detailed above, although the Veteran is competent to report about symptoms, he is not competent to diagnose himself with a psychiatric disability. Hence, those statements are of little probative value. See LeShore v. Brown, 8 Vet. App. 406 (1995) (a mere transcription of lay history, unenhanced by any additional medical comment by the transcriber, does not become competent medical evidence merely because the transcriber is a medical professional.); see also Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Elkins v. Brown, 5 Vet. App. 474, 478 (1993). Additionally, medical evaluation that is merely a recitation of a Veteran's self-reported and unsubstantiated history has no probative value. Sanchez-Benitez, 13 Vet. App. 282 (1999). However, the Board has carefully examined the opinion of the August 2013 VA examiner who concluded that it was at least as likely as not that the Veteran had a 5% aggravation of preexisting depressive symptoms of bipolar II disorder in 1993 when his poisition was changed in the military and he lost his staff due to those changes. One interpretation of this opinion is that the examiner is providing a somewhat supportive opinion that a 5 percent aggravation of the Veteran's bipolar II disorder occurred during service, without any evidence that this condition preexisted service. Another reasonable interpretation of this opinion, however, is that the examiner is linking the Veteran's bipolar II disorder to service and merely stating that its depressive component was further exacerbated or aggravated by 5 percent during service. This interpretation, of course, would act to link the disorder to service, as there is no evidence that it preexisted service and there is no medical opinion of record that contradicts such an opinion. Consequently, based on the latter interpretation, the Board will give the Veteran the benefit of the doubt and conclude that service connection for bipolar II disorder, but no other currently diagnosed psychiatric disorder, is warranted. ORDER Service connection for bipolar II disorder is granted. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs