Citation Nr: 1340170	
Decision Date: 12/05/13    Archive Date: 12/20/13

DOCKET NO.  12-31 245	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New Orleans, Louisiana


THE ISSUE

Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and major depressive disorder.


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

J. Jenkins, Associate Counsel 


INTRODUCTION

The Veteran served on active duty from June 1970 to March 1972.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from an March 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana.  

Characterization of the Issues on Appeal

The Veteran initially filed a claim to establish service connection for PTSD.  In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims (Court) held that, in determining the scope of a claim, the Board must consider the Veteran's description of the claim; symptoms described; and the information submitted or developed in support of the claim.  Id. at 5.  

As will be discussed below, there is no valid PTSD diagnosis of record.  However, the Veteran has been diagnosed with major depressive disorder.  In light of the Court's decision in Clemons and the diagnosis of record, the Board has expanded the Veteran's claim to include all acquired psychiatric disabilities, and the issue has been recharacterized as stated on the title page.  This will provide the most favorable review of the Veteran's claim in keeping with the Court's holding in Clemons.


FINDINGS OF FACT

1.  The most probative evidence is against finding that the Veteran had a diagnosis of PTSD, in accordance with the DIAGNOSTIC AND STATISTICAL MANUAL, FOURTH EDITION (DSM-IV), during the pendency of his claim.

2.  The most probative evidence is against finding that the Veteran's current diagnosis of major depressive disorder is causally related to active service.





CONCLUSION OF LAW

The criteria for service connection for an acquired psychiatric disorder, to include PTSD and major depressive disorder, are not met.  38 U.S.C.A. §§ 1101, 1131, 1112, 1113, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Assist and Notify 

As required by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist Veterans in substantiating claims for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(b) (2013).  Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(b) (2013); Quartuccio v. Principi, 16 Vet. App. 183 (2002).

In Pelegrini v. Principi, the Court held that VA must inform the Veteran 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 Veteran is expected to provide.  18 Vet. App. 112, 120-21 (2004). 

With respect to the Veteran's claim to establish service connection for an acquired psychiatric disability other than PTSD, VA has met all statutory and regulatory notice and duty to assist provisions.  See 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 (2013).  In a letter dated December 2010, VA satisfied its duty to notify the Veteran.  Specifically, the RO notified the Veteran of the information and evidence necessary to substantiate a claim for service connection; information and evidence that the VA would seek to provide; and information and evidence that the Veteran was expected to provide.  The December 2010 letter also notified the Veteran about the process by which disability ratings and effective dates are established.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  

The letter dated December 2010 did not apprise the Veteran of the new PTSD provisions codified at 38 C.F.R. § 3.304(f)(3), effective July 13, 2010.  However, as discussed below, the Veteran does not have PTSD; rather, his psychiatric symptoms are due to major depressive disorder.  Since the Veteran does not have a diagnosis of PTSD, remand for notice to the Veteran of 38 C.F.R. § 3.304(f)(3) (2013) is not warranted.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (noting that strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran).  

VA has satisfied its duty pursuant to 38 U.S.C.A § 5103A (West 2002 & Supp. 2013) and 38 C.F.R. § 3.159(c) (2013) to assist the Veteran with regard to the issue adjudicated on the merits herein.  The Veteran's service treatment records, and post-service private and VA medical treatment records are of record.  VA provided the Veteran a VA examination in January 2011.  The examination report reflects that the examiner reviewed the Veteran's claim file, recorded his current complaints, conducted an appropriate examination, and rendered appropriate diagnosis and opinion with rationale consistent with the remainder of the evidence of record.  

In the December 2012 VA Form 646, the Veteran's representative asserted that the VA examination was inadequate for rating purposes because the examiner discounted everything that the Veteran expressed to the examiner during the examination.  Specifically, the Veteran contends that the examiner dismissed the Veteran's experiences in Vietnam, and believed that because the Veteran was a dental specialist, not a combat solider he therefore could not have been exposed to any traumatic experiences.  

After reviewing the VA examination report, the Board finds that the VA opinion is adequate for adjudicating the Veteran's claim.  The Board notes that the examiner documented the Veteran's report of witnessing wounded soldiers while serving as a medical corpsman and dental specialist.  The examination report indicates that the Veteran reported that he experienced no significant problems at the Long Binh Dental Clinic and stated that part of the tour was easy.  The examiner noted that when asked if he experienced anything traumatic or upsetting while serving at the Saigon Field Hospital, the Veteran responded no.  The examiner indicated that when questioned again about this, the Veteran spoke about feeling frustrated and angry in the present day and not about traumatic events from Vietnam.  The examiner specifically noted that the Veteran reported that he saw people in the hospital that were wounded, but that the Veteran did not describe full criterion A for PTSD, nor did he describe stressors relating to fear of hostile military or terrorist activity.  Accordingly, the examiner found that the Veteran did not describe PTSD symptoms in relation to seeing wounded people.  As such, the Board finds that the examiner did not discount the Veteran's reported history but rather determined that the Veteran did not experience PTSD symptoms related to his experiences from serving in Vietnam.  Accordingly, the Board finds that the VA examination report is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  

Based on the foregoing, the Board finds that VA satisfied its duties to notify and assist under the governing law and regulation.  The Board will therefore review the merits of the Veteran's claim, de novo.  

Legal Criteria

Generally, service connection is warranted if it is shown that a Veteran has a disability resulting from an injury incurred or a disease contracted in active service or for aggravation of a pre-existing injury or disease in active military service.  38 U.S.C.A. §§ 1110, 1131(West 2002); 38 C.F.R. § 3.303 (2013).  Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d) (2013).

Establishing service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (2013); 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).  If the Veteran fails to demonstrate any one element, denial of service connection will result.  Shedden v. Principi, 381 F.3d 1163 (2004).  

Where a Veteran served 90 days or more during a period of war, and a chronic disease, including a psychosis, becomes manifest to a degree of 10 percent or more within one year from date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such disease during the period of service.  This presumption is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.307, 3.309 (2013).  

In Robinson v. Shinseki, 312 Fed. Appx. 336 (2009), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that, in some cases, lay evidence will be competent and credible evidence of etiology.  Whether lay evidence is competent in a particular case is a question of fact to be decided by the Board in the first instance.  The Federal Circuit set forth a two-step analysis to evaluate the competency of lay evidence.  The Board must first determine whether the disability is the type of injury for which lay evidence is competent evidence.  If so, the Board must then weigh that evidence against the other evidence of record to determine whether to grant service connection.  The Board observes that this Federal Circuit decision is nonprecedential.  However, a non-precedential Court decision may be cited "for any persuasiveness or reasoning it contains."  Bethea v. Derwinski, 2 Vet. App 252, 254 (1992).  The Board believes that if Bethea applies to the utility of Court decisions, it surely applies to the utility of decisions of a superior tribunal, the Federal Circuit.

Analysis 

In adjudicating the claim below, the Board has reviewed all of the evidence in the Veteran's claims file.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all the evidence submitted by the Veteran or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

PTSD 

The Veteran contends that service connection is warranted for PTSD.  The Veteran asserts that he has PTSD from witnessing wounded and dying people while serving as a dental specialist and medical corpsman in Vietnam.  

The first element of a claim for service connection is evidence of a current disability.  The Veteran avers that he has PTSD; however, as discussed below, the most competent and probative evidence of record is against such a finding.  Instead, the evidence shows that the Veteran has been diagnosed with major depressive disorder, opioid dependence, in full-sustained remission, and schizoid personality traits.  

In connection with his claim, the Veteran was provided a VA examination in January 2011.  After examining the Veteran, documenting his reported military history and current complaints, and reviewing the complete claims file, the VA examiner found that the Veteran did not meet the criteria for PTSD.  Instead, the examiner diagnosed the Veteran with major depressive disorder, opioid dependence, in full-sustained remission, and schizoid personality traits.  

In finding that the Veteran did not meet the criteria for a diagnosis of PTSD, the examiner noted that when asked about his mental or emotional problems the Veteran described symptoms of depression, rather than PTSD.  The examiner explained that when asked if he experienced anything traumatic or upsetting during his tour of duty, the Veteran stated no.  When questioned again, the Veteran spoke about feeling frustrated and angry in the present day but not about traumatic events from active service.  The examiner noted that the Veteran reported seeing people in the hospital that were wounded, but that he did not describe PTSD symptoms related to these events.  As such, the examiner found that the Veteran had not described full criterion A for PTSD.  Additionally, the examiner noted that the Veteran had not described stressors relating to fear of hostile military or terrorist activity.  The examiner stated that the Veteran did not report much in the way of direct PTSD symptoms.  The examiner indicated that the Veteran reported occasional nightmares about various topics including death and violence but did not describe re-experiencing actual traumatic events in his dreams, nor did he describe intrusive thoughts or psychological distress when encountering triggers.  The examiner also found that the Veteran did not describe any significant avoidance symptoms other than interpersonal detachment, which the examiner noted appeared in the context of depression about 10 or 15 years ago.  

The Board is mindful of the Veteran's and his representative's assertions that the Veteran has PTSD.  While the Veteran and his representative are competent to report observable symptoms, they are not competent to diagnose the Veteran with PTSD.  The Board acknowledges that under certain circumstances, a layperson is competent to identify a simple medical condition.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (noting that sometimes a layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer).  However, as noted above, establishing service connection for PTSD requires that the diagnosis of PTSD be rendered in accordance with 38 C.F.R. § 4.125 (2013), that is, a diagnosis pursuant to the DSM-IV.  38 C.F.R. § 3.304(f) (2013).  As such, PTSD is not a simple medical condition that the Veteran or his representative as laypersons can perceive based on mere personal observation, that is, by visual observation or by any other of the senses.  For these reasons, the Veteran and his representative are not competent to declare that the Veteran has PTSD.  

The Board acknowledges that the Veteran was trained as a dental specialist and as a medical corpsman.  However, there is no evidence that the Veteran has had the requisite medical training or knowledge to render a diagnosis or etiology of a psychological disorder.  Accordingly, while the Veteran does have some medical training, that training does not qualify him to offer a medical diagnosis in this case.  Thus, it has not been established that the Veteran is otherwise qualified through specialized education, training, or experience to state that he has PTSD or to offer a medical diagnosis or an opinion on medical causation.  

The Federal Circuit has held that where the determinative issue involves a question of medical diagnosis or causation, only individuals possessing specialized medical training and knowledge are competent to render such an opinion.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. Sept. 14, 2009); see also Barr v. Nicholson, 21 Vet App 303 (2007) (finding lay testimony competent to establish the presence of varicose veins); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (stating that unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis).  Accordingly, to the extent that the Veteran's and his representative's statements are offered as evidence of a diagnosis or etiology, the statements are not competent evidence and the statements necessarily are excluded as evidence in support of the claim.  

In this case, the medical evidence reflects that the Veteran does not meet the DSM-IV criteria for a diagnosis of PTSD.  In the absence of competent evidence indicating a diagnosis of PTSD, the criteria for entitlement to service connection for PTSD are not met.  Shedden, 381 F.3d at 1167 (holding that if the Veteran fails to demonstrate any one of the elements for a grant of PTSD, including, medical evidence diagnosing the condition in accordance with the provisions of 38 C.F.R. § 4.125(a) (2013), service connection must be denied).

Because the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt provision does not apply.  Therefore, the Board finds that service connection for PTSD is not warranted.  See 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303 (2013).

Acquired Psychological Disorder, other than PTSD

The Board has also considered whether the Veteran is entitled to service connection for an acquired psychiatric disability, other than PTSD.  The Board finds that the criteria for service connection for an acquired psychological disorder, other than PTSD, are not met. 

The VA examiner diagnosed the Veteran with major depressive disorder, opioid dependence, in full-sustained remission, and schizoid personality traits.  

With respect to the VA examiner's diagnosis of opioid dependence, the law prohibits a grant of direct service connection for drug or alcohol abuse on the basis of incurrence or aggravation in the line of duty during service.  Pub. L. No. 101-508, § 8052, 104 Stat. 1388 , 1388- 351 (1990); VAOPGCPREC 2-98 (Feb. 10, 1998), 63 Fed. Reg. 31263 (1998).  Accordingly, service connection for opioid dependence on a direct basis is precluded as a matter of law.  In regard to the diagnosis of schizoid personality traits, personality disorders are considered to be congenital or developmental abnormalities, not disabilities for the purposes of service connection.  See 38 C.F.R. §§ 3.303(c), 4.9, 4.127 (2013).  As such, the Veteran's diagnoses of opioid dependence and schizoid personality traits do not satisfy the first Shedden element and cannot be service-connected.  

In regard to the Veteran's diagnosis of major depressive disorder, the first Shedden element is met.  The Board notes that private treatment records from Dr. R.M., dated as recently as February 2011, noted that the Veteran was negative for depression and anxiety.  The Board finds that the January 2011 VA examiner's diagnosis of major depressive disorder, following a thorough psychological examination, is more probative than the negative screenings noted by Dr. R.M.  As such, the first Shedden element is satisfied. 

In regard to the second Shedden element, the Veteran's service treatment records are devoid of any complaints of or treatment for symptomatology congruent with depression, and he was not diagnosed with major depressive disorder during his active duty.  The only notation of any mental health symptoms was in a February 1971 service treatment record, in reference to the Veteran's complaints of postprandial vomiting.  The examining physician noted that tests for a possible gastric obstruction were negative and that he believed the vomiting was psychosomatic in origin.  The examining physician noted that a mental hygiene clinic follow-up might be warranted, but the Veteran's service treatment records do not indicate that the Veteran was ever referred to or seen at the mental hygiene clinic.  Moreover, on his report of medical history form for his March 1972 separation examination, the Veteran stated that he was in good health and denied having depression or excessive worry, trouble sleeping, or nervous trouble of any sort.  The report of medical examination for separation was silent as to any abnormalities, and the Veteran signed his name under his hand written statement that he was in good health.   

In his October 2012 substantive appeal, the Veteran stated that while serving as a medical corpsman and dental specialist he was exposed to death and destruction on a daily basis.  The Veteran's DD 214 Form indicates that the Veteran's specialty was as dental specialist and that he received training as a medical corpsman.  At his January 2011 VA examination, the Veteran reported that he was stationed at the Long Binh Dental Clinic and the Saigon Third Field Hospital.  The Veteran stated that he witnessed people in the hospital who were wounded.  The Board finds that the Veteran's account of witnessing wounded service members and gruesome things is consistent with the place, type, and circumstances of such Veteran's service.  38 U.S.C.A. § 1154(a) (2013).  Accordingly, Shedden element two is satisfied. 

In regard to the third Shedden element, the Board finds that the weight of evidence demonstrates the Veteran's current diagnosis is not related to active service.  As discussed above, the Veteran was provided a VA examination in January 2011.  The VA examiner opined that the Veteran's major depressive disorder was less likely than not caused by or related to his military service.  The examiner explained that the Veteran's depression had a later onset in terms of a clinical condition.  The also examiner noted that there was no mention of depression in the Veteran's service treatment record.  The examiner stated that the Veteran reported depression symptoms started 10 or 20 years ago, or at the earliest, 19 years after separation.  The examiner also noted that despite the Veteran's reported symptoms of irritability and depression, the Veteran never sought mental health treatment and was able to manage it on his own without any treatment.   

The Board finds the VA examiner's opinion is the most probative evidence of record.  As noted above, the VA examiner's opinion was based on the examiner's review of the claims file, a thorough psychological examination, was provided by a licensed medical professional, and included a complete and thorough rationale in support of the opinion.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (holding that 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).  

In the present case, the only nexus evidence of record that is favorable to the Veteran's claim is from the Veteran and his representative.  While the Veteran and his representative as laypersons are competent to report observable symptoms of the Veteran's psychological disorder, including his depressed mood, reduced socialization, and irritability, the Board finds that they are not competent to provide an opinion regarding the etiology of his major depressive disorder.  Layno v. Brown, 6 Vet App. 465, 470 (1994); Davidson v. Nicholson, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  38 C.F.R. § 3.159(a)(1) (2013).  As noted above, while the Veteran received some medical training as a dental specialist and as a medical corpsman, nothing in the record suggests that he has specialized skill, knowledge, or training pertaining to psychological disorders.  Accordingly, to the extent that the Veteran's statements are offered as evidence that his major depressive disorder is etiologically related to service, his statements are not competent evidence and necessarily are excluded as evidence in support of the claim.  

The VA examiner conducted an examination of the Veteran, interviewed the Veteran, reviewed the entire claims file and medical history of the Veteran, and a provided nexus opinion with a supporting rationale.  Accordingly, the Board finds that the VA examiner's opinion is more probative than the statements of the Veteran and his representative with respect to the etiology of the Veteran's major depressive disorder.

The Board notes that if a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b) (2013).  If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a) (2013).  The Federal Circuit recently held that the theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

In the present case, the Board notes that the only psychiatric disabilities listed among the disorders determined by VA to be "chronic" in 38 C.F.R. § 3.309(a) (2013) are psychoses.  However, the Veteran's diagnosed acquired psychiatric disability, major depressive disorder, is not listed among the psychiatric disorders noted by VA as psychoses.  38 C.F.R. § 3.384 (2013).  Accordingly, the provisions of 38 C.F.R. § 3.303(b) (2013) pertaining to chronicity and continuity of symptomatology are not applicable.  See Walker, supra.  

After reviewing all the evidence of record, the Board finds the weight of probative evidence is against finding that the Veteran's current diagnosis of major depressive disorder is etiologically related to service.  As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt doctrine does not apply.  38 U.S.C.A. § 5107(b) (West 2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

ORDER

Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and major depressive disorder, is denied. 


____________________________________________
U.R. Powell
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs