Citation Nr: 1339950 Decision Date: 12/04/13 Archive Date: 12/18/13 DOCKET NO. 08-12 522 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S.J. Janec, Counsel INTRODUCTION The Veteran had active service from July 1969 to April 1970. This matter comes before the Board of Veterans' Appeals (Board) from a June 2007 rating decision of the Milwaukee, Wisconsin, Regional Office (RO) of the Department of Veterans Affairs (VA) that declined to reopen the claim for service connection for PTSD. In November 2010, the Veteran testified at a videoconference hearing conducted before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims folder. In a December 2010 decision, the Board found that new and material evidence had been received sufficient to reopen the claim, and remanded the matter to the RO for further evidentiary development and adjudication on the merits. The case has been returned to the Board. 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). 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 his currently manifest psychiatric disability did not have its onset in service and was initially diagnosed many years after discharge. CONCLUSION OF LAW A psychiatric disability, to include PTSD, was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 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, following the Board's December 2010 remand, a notice letter dated in January 2011 informed the Veteran of what the evidence must show to establish entitlement to the benefit (e.g., service connection), what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from him, what evidence VA was responsible for getting, and what information VA would assist in obtaining on his behalf. The correspondence also detailed how disability ratings and effective dates are assigned. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The claim was then readjudicated in a March 2012 supplemental statement of the case. Prickett v. Nicholson, 20 Vet. App. 370, 376-77 (2006). Neither the Veteran, nor his representative, has alleged error in VA's notice to the Veteran in this appeal. Hence, the duty to notify has been satisfactorily met. Regarding the duty to assist, VA obtained the Veteran's service treatment records and post-service private and VA medical records, and also secured medical opinions in furtherance of the Veteran's claim. The Veteran was informed in letters from VA if records were unavailable. The opinions obtained are sufficient because they were based on a thorough examination, consideration of the Veteran's contentions, and a review of the claims file, and included rationales. 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 (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). 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 10-month period of active duty. The Veteran's personnel records show that he was involved in an altercation in February 1970 that resulted in his being discharged from service in April 1970 to avoid facing a court martial. He assaulted a corporal by grabbing him and holding him against his will. He also assaulted a sentinel by pushing him down and holding him. Service treatment records do not document any psychiatric treatment. At the January 1970 separation examination, the Veteran denied frequent trouble sleeping, frequent or terrifying nightmares, depression or excessive worry, and nervous trouble of any sort. He did not respond yes or no to the question of whether he had an excessive drinking habit. On examination, no psychiatric impairment was noted, and he was found to be psychiatrically normal. Statements dated in April 2003 and April 2005 indicate that the Veteran's alleged stressor was his time in the brig from February 1970 to April 1970. The Veteran's contentions indicate that, while incarcerated in the brig, he witnessed beat downs, heard about people being raped, was coerced into doing drugs, and had an altercation with another man. Responses from the Naval Criminal Investigative Service (NCIS) in August 2006 and March 2007 and the Army Crime Investigation Command in August 2006 indicate that no records were found related to an altercation between the Veteran and another serviceman. With regards to the Veteran's other reported stressors while in the brig, such stressors are not capable of being verified by research by VA. See Cohen v. Brown, 10 Vet. App. 128, 134 (1997) ("Anecdotal incidents, although they may be true, are not researchable. In order to be researched, incidents must be reported and documented."). By letter dated in January 2011, the Veteran was afforded another opportunity to provide sufficient detail or corroborative evidence pertaining to his claimed stressors. In April 2012, he responded that he did not report the details to anyone. Records from W.H., M.D. dated in June 2006 and July 2006 show that the Veteran was diagnosed with PTSD based his reports of trauma while incarcerated in service. Records C.J.R., M.D., dated from February 2010 to December 2011 indicate that the Veteran was diagnosed with alcohol abuse, cannabis dependence, depressive disorder not otherwise specified (per self report), and PTSD (per self report). He declined medication and psychotherapy treatment. It was noted in a clinical record that he was "focused on VA disability rating as primary goal." He was subsequently advised that his chart would be closed since he declined individual therapy and did not want to take medications. It was also noted that he was informed that it was not appropriate for him to be seen in clinic just because he is seeking a disability rating from VA. Upon VA examination in March 2011, the Veteran gave a history of being involved in an altercation with another man in prison. He was unclear as to whether or not he was sexually assaulted, but he heard other inmates undergoing sexual assault. He also heard about an inmate being fatally injured. Clinical evaluation revealed that the Veteran did not present with sufficient symptoms to support a diagnosis of PTSD. The diagnoses were dysthymic disorder, marijuana abuse, possible alcohol abuse (unable to determine current usage of alcohol). It was also noted that he had antisocial traits. The examiner concluded that the Veteran's dysthymia stemmed from a variety of sources. His anti-social traits, early delinquent behaviour, ongoing aggressive behaviour during the military, the impact of substance use from an early age, as well as his ongoing use of substances contribute to a general dissatisfaction with his life and negatively impact his mood. His experience during military incarceration are also factors given that he was in an environment in which "according to his account, he perceived a threat to his safety." However, the examiner noted that it was not possible to confirm or deny the occurrence of the events claimed and that individuals with anti-social traits may fabricate events or over emphasize features of actual events in order to suit their own purposes. Thus, the evidence does not support a finding that the Veteran has PTSD or another psychiatric disorder that had its onset in service. As detailed above, the Veteran did not serve in combat, and his reported stressor has not been verified through official channels. Upon VA examination in March 2011, it was determined that the Veteran did not have PTSD, and the diagnoses in the record were either based on the self report of the Veteran or based on an unconfirmed stressor. 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, the Veteran denied depression or other psychiatric symptoms in his Report of Medical History prior to discharge, and clinical evaluation upon separation indicated that he was within normal limits psychiatrically. There are virtually no clinical records documenting complaints of or treatment for depression until the early to mid 2000's - more than 30 years after separation from 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). Finally, the Board observes that the record does not show that Veteran was diagnosed with a psychosis within one year of his discharge from military service. To the extent that the Veteran has alleged continuity of symptomatology since discharge, the Board finds that he is competent to provide testimony as to having experienced depressive symptoms during service as well as after his discharge. 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, he is not competent to diagnose himself with a psychiatric disorder or to attribute his complaints to a specific cause. Id. Simply stated, the Veteran's opinion regarding the presence or etiology of a psychiatric disability, in service or shortly thereafter lacks probative value and it does not constitute competent medical evidence. Psychiatric diseases are complex disorders that requires 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. Moreover, the Veteran's statements regarding continuity of symptomatology are not credible. Credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the witness testimony. Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995). In this case, although the Veteran has asserted continued depressive symptoms since his discharge from service, he did not report any such difficulties upon separation examination and he did not seek professional help for his reported symptoms until the 2000s, more than 30 years after discharge from military service. Upon VA examination in March 2011, the examiner noted that the Veteran's anti-social traits may contribute to fabricating events to suit his own purpose. Notably, the private clinician who treated him in 2010 and 2011 ended treatment noting that the Veteran was focused on his VA disability rating, rather than on treatment. Accordingly, based on the foregoing, which shows inconsistency, interest and bias in the Veteran's contentions related to his claim for VA benefits, the Board finds that the Veteran is not credible to the extent that he reports that he has had depressive symptoms since active service. 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 proffered by the VA examiner in March 2011, that the Veteran's dysthymia may, at least in part, stem from his military prison experiences, but has found that portion to be lacking significant probative value because it is not supported by the clinical data contained in the record. In sum, the statement, as acknowledged by the examiner, was made based solely on the Veteran's reported history, and, as detailed above, the history he provided is not consistent with the evidence contained in the record. 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.); Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Elkins v. Brown, 5 Vet. App. 474, 478 (1993). Also, 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). Thus, the Board finds that the statement lacks significant probative value. Bloom, supra. In sum, the preponderance of the evidence is against the claim. Consequently, the Board concludes that service connection for a psychiatric disability, to include PTSD, is not warranted. Gilbert, supra. ORDER Service connection for a psychiatric disorder, to include PTSD, is denied. ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs