Citation Nr: 1340227 Decision Date: 12/05/13 Archive Date: 12/20/13 DOCKET NO. 09-39 348 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). ATTORNEY FOR THE BOARD Shana Z. Siesser, Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran served on active duty from January 1972 to October 1973. This case is before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision issued by the RO in San Juan, the Commonwealth of Puerto Rico. Although the Veteran initially requested a hearing, the Veteran withdrew his request in a February 2010 written statement. See 38 C.F.R. § 20.704(d) (2012). This claim was previously before the Board in July 2012, at which time the Board remanded the claim for additional development. The RO has complied with the remand directives. In addition to the paper claims file, there are Virtual VA and Veterans Benefits Management System (VBMS) paperless files associated with the Veteran's case. A review of the documents in the Virtual VA paperless and VBMS claims files do not reveal any additional documents pertinent to the present appeal. FINDINGS OF FACT 1. The Veteran does not have a diagnosis of PTSD in accordance with the DSM-IV criteria. 2. The Veteran's acquired psychiatric disorders, including anxiety and depression, were not incurred in or as a result of his active service. CONCLUSION OF LAW The criteria to establish service connection for an acquired psychiatric disorder, to include PTSD, are not met. 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, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, 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). Proper notice from VA 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; (3) that the claimant is expected to provide; and (4) VA must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ), as was done in this case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). For claims pending before VA on or after May 30, 2008, 38 C.F.R. 3.159 was amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008). In compliance with the duty to notify the Veteran of what information would substantiate his claim, the Veteran was advised that VA used a Schedule for Rating Disabilities (Schedule) that determined the rating assigned and that evidence considered in determining the disability rating included the nature and symptoms of the condition, the severity and duration of the symptoms, and the impact of the condition and symptoms on employment. Here, the VCAA duty to notify was satisfied by way of letters sent to the Veteran dated in November 2011, February 2008, and September 2012 that fully addressed all notice elements. VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the service treatment records, VA outpatient treatment records and private medical records. Additionally, the Veteran was afforded VA examinations in March 2009 and December 2012 that are determined to adequate for adjudication purposes. The Veteran has not identified and the record does not otherwise indicate any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Merits of the claim Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection for PTSD requires medical evidence establishing a diagnosis of the condition, credible supporting evidence that the claimed in-service stressor actually occurred, and a link between current symptomatology and the claimed in-service stressor. Cohen v. Brown, 10 Vet. App. 128 (1997). The evidence necessary to establish the occurrence of a stressor during service to support a diagnosis of PTSD will vary depending upon whether the Veteran engaged in "combat with the enemy" as established by official records. See 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(f); Dizoglio v. Brown, 9 Vet. App. 163, 164 (1996); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). For stressors unrelated to combat, credible supporting evidence is necessary in order to grant service connection. "Credible supporting evidence" of a noncombat stressor may be obtained from service records or other sources. Moreau v. Brown, 9 Vet. App. 389 (1996). The Court has held that the regulatory requirement for "credible supporting evidence" means that "the appellant's testimony, by itself, cannot, as a matter of law, establish the occurrence of a noncombat stressor." Dizoglio, 9 Vet. App. at 163. Therefore, the Veteran's lay testimony is insufficient, standing alone, to establish service connection. Cohen, 10 Vet. App. at 147 (citing Moreau, 9 Vet. App. at 395). The regulations governing PTSD were amended, effective July 13, 2010. 75 Fed. Reg. 39843 -52 (July 13, 2010). Specifically, this amendment eliminates the requirement for corroborating that the claimed in-service stressor occurred if a claimed stressor is related to a 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, provided that the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service. Id. The Board must analyze the credibility and probative value of the evidence, account for the persuasiveness of the evidence, and provide reasons for rejecting any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996). With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza, supra. The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). The benefit of the doubt rule provides that a Veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence; therefore, the Veteran prevails in his claim when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against a Veteran's claim that the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran contends that during service, he was sleeping and another soldier fondled his genitals. He did not report this incident to his superior officers. The Veteran's available service medical records, which do not include a separation medical examination or report of history, are negative for relevant complaints, symptoms, findings, or diagnoses. The Veteran first sought psychiatric treatment in June 1975. He claimed that he began feeling anxious a few months after his discharge from service. He did not identify any incident of service as to the source of his anxiety. The Veteran was diagnosed with anxiety neurosis, r/o latent schizophrenia. In October 1975, the Veteran was hospitalized with a diagnosis of latent schizophrenia with anxiety neurosis. At an October 1975 VA examination, the examiner diagnosed anxiety neurosis, moderately severe. During the examination, neither the Veteran nor the examiner attributed his anxiety to his period of service. Subsequent private medical records include diagnoses of dysthymic disorder in November 1994 and January 1995. In a September 2000 letter, a private psychiatrist stated that he had treated the Veteran for dysthymic disorder since December 1993. At VA examinations in February 2001 and August 2004, the VA examiners provided an Axis I diagnosis of depressive disorder. An August 2004 VA report also provides that the examiner reviewed the Veteran's claims file and his treatment records. The examiner noted the Veteran's October 1975 VA examination report, VA hospitalization for psychiatric treatment in 1975, and private treatment since 1993. The examiner primarily addressed the Veteran's claimed PTSD. He also stated that the Veteran's depressive disorder was not caused by or the result of his military service. Depressive disorder was not diagnosed until the February 2001 VA examination. In a June 2004 report, a private psychiatrist provides an Axis I diagnosis of PTSD. The psychiatrist states that the Veteran had a history of mental illness since 1973; a date he noted coincided with the Veteran's separation from active duty. Although the Veteran was not directly involved in the Vietnam conflict, he received all of the "discharge" for those events. This included expecting to participate, knowing comrades who went to Vietnam and were injured or killed, and training. An August 2005 report from the same psychiatrist again observed that although the Veteran was not in Vietnam, he had a "post-traumatic state" based on the loss of comrades, stories from other comrades and the waiting to be called [to Vietnam]. During a March 2005 hearing, the Veteran testified that he did not receive any psychiatric treatment during service. In a December 2007 opinion from the Veteran's psychiatrist, J.R.C., Dr. C. restated the Veteran's stressor of sexual abuse and concluded that "obviously the incident is true" and the "incident caused in him a series of conflicts that had led him to his current condition." However, in this letter, Dr. C. does not offer a specific diagnosis or examination of the Veteran. At a February 2009 VA examination, the examiner noted that the Veteran met the DSM-IV stressor criterion for PTSD, but the symptoms of the Veteran's psychiatric disorder did not meet the PTSD diagnostic criteria. The examiner diagnosed the Veteran with depressive disorder, NOS. No opinion was offered as to the etiology of his depression. In November 2009, the Veteran submitted an opinion from his private physician, N.O., M.D. Dr. O. noted that the Veteran had a history of anxiety and depression and that he currently presents with continuous sleep problems, nightmares, and flashbacks of a traumatic incident he had while on active service. Dr. O. opined that the Veteran was sexually assaulted by another soldier during service and due to that incident; he has feelings of shame, betrayal, intense fear, helplessness, and horror. Dr. O. then requested for the Veteran to be evaluated for PTSD because "there is medical evidence diagnosing the condition as PTSD in conformance with the DSM-IV; credible supporting evidence that the claimed in-service stressor occurred, and there is medical evidence of a link between current symptomology and the claimed in-service stressor, so it is more probable than not that he is presenting PTSD and depression that is service connected." A June 2011 treatment note shows the Veteran had an Axis I diagnosis of major depression, non psychotic. The Veteran underwent a VA examination in December 2012. The examiner reviewed the claims file and performed a full examination of the Veteran. The examiner declined to offer a diagnosis of PTSD because the Veteran lacked the requisite symptomatology, but the examiner found that the alleged incident of sexual assault would be adequate to support a PTSD diagnosis. The examiner diagnosed the Veteran with anxiety disorder, NOS, and opined "Veteran sought psychiatric case in 1975, two years after his military discharge and the reported events. There is no evidence of social and/or occupational impairment during service. A temporal relationship between the neuropsychiatric disorder and the Veteran's military service is not established. Dr. N.O. lacks the training in psychiatry and the medical expertise to provide psychiatric diagnosis." Analysis Having carefully considered the claim in light of the record and the applicable law, the preponderance of the evidence is against the claim and the appeal must be denied. The Veteran currently has several psychiatric diagnoses from a variety of sources, some of which conflict in their findings. When evaluating medical opinions it is the province of the Board to weigh the evidence and decide where to give credit and where to withhold the same, and in so doing, to also accept certain medical opinions over others. See Evans v. West, 12 Vet. App. 22, 30 (1999). The Board cannot make its own independent medical determinations and that there must be plausible reasons for favoring one opinion over another. See also Rucker v. Brown, 10 Vet. App. 67, 74 (1997), citing Colvin v. Derwinski, 1 Vet. App. 171 (1991). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail and whether there was review of the Veteran's claims file. Prejean v. West, 13 Vet. App. 444 (2000). An evaluation of the probative value of a medical opinion or diagnosis is based on the medical expert's personal examination of the patient, the examiner's knowledge and skill in analyzing the data, and the medical conclusions reached. The Board may then determine the credibility and weight to be attached to such opinions. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The Board finds that the Veteran does not have PTSD. Multiple VA examiners have declined to offer a PTSD diagnosis after a review of the claims file and a full examination of the Veteran. Although a private psychiatrist offered a PTSD diagnosis based on a general fear of being called to serve in Vietnam, the Veteran has repeatedly stated that his stressor was the sexual assault by a fellow soldier. Additionally, although Dr. O. opined that it was probable that the Veteran had PTSD as a result of the sexual assault, she did not diagnose the Veteran with PTSD in accordance with the DSM-IV criteria, nor it is apparent that she is trained in the field of psychology or psychiatry. The Veteran's available service treatment records are silent for any complaints, treatment, or diagnosis of PTSD or any other psychiatric diagnoses or complaints. It is clear that he first sought treatment for mental health in 1975, two years after his discharge from service, but none of the post-service treatment records have provided a DSM-IV diagnosis of PTSD due to his alleged stressor of sexual assault and the Veteran does not contend that his mental illness is due to the stresses of impending Vietnam service. The Veteran has undergone three VA examinations with a psychiatrist or psychologist, none of which have found that the Veteran meets the criteria for a diagnosis of PTSD, nor have they found that he has another psychiatric diagnosis which is related to his service. As to the claimed in-service stressor, while PTSD stressor has been diagnosed in the record, the record shows no diagnoses of PTSD due to lack of symptomatology. Therefore, further discussion of stressors is not necessary in relation to the PTSD aspect of the claim because the evidence shows that the Veteran does not have PTSD. The examinations provided by numerous psychologists and psychiatrists during the course of the Veteran's appeal which all found that the Veteran did not meet the criteria for a diagnosis of PTSD have far greater probative value, as psychiatrists and psychologists have greater training, experience, and skill in diagnosing mental disorders than a general practice physician. The Veteran does, however, have other valid psychiatric diagnoses provided by competent psychiatrists and psychologists, but these disorders have not been shown by any competent medical evidence to be related to his service. The VA examiners all diagnosed the Veteran with depressive disorder and anxiety disorder, but the December 2012 VA examiner also opined that his mental health disorder was unrelated to his military service, given the lack of symptoms during service and the gap of time between service and his initial treatment. The Veteran nevertheless contends that he does have PTSD as a result of his military experience. The Board recognizes that the Veteran, as a layperson, is competent to report on matters observed or within his personal knowledge. See Layno, 6 Vet. App. at 470. The Board acknowledges the Veteran's statements regarding the sexual assault and deems him competent to report on his current psychiatric symptoms, such as having nightmares. However, a diagnosis of a psychiatric disability, including PTSD, requires not just observation of certain symptoms, but also specialized training to diagnose psychiatric disorders. Additionally, a probative medical opinion on the etiology or underlying causes of any other psychiatric condition likewise requires the specialized training of a medical professional. In this case, as a layperson not shown to possess appropriate medical training and expertise, the Veteran's opinion is not probative on whether he currently has or has ever suffered from PTSD or whether his currently diagnosed depression or anxiety was caused by or otherwise related to his military service. Jandreau, 492 F.3d at 1377 (noting general competence to testify as to symptoms but not to provide medical diagnosis). Hence, his assertions in this regard do not constitute persuasive evidence in support of the claim for service connection. Furthermore, the Board has also considered whether service connection for a psychiatric disorder is warranted on a presumptive basis. Psychosis shall be presumed to have been incurred in service when the Veteran has served continuously for 90 days or more during a period of war and it manifests to a degree of 10 percent or more within one year from termination of service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In this case, although the Veteran reported feeling stress after his separation from service, there is no evidence that he had any psychiatric treatment or complaints prior to 1975, which is two years after his separation from service, nor has the Veteran at any time been diagnosed with or shown to have symptoms of a psychosis. Therefore, this presumption is inapplicable in the current case. In short, there is no probative evidence showing that the Veteran has a valid, current diagnosis of PTSD or that he has had a diagnosis of another psychiatric disability which has been connected to his service, either directly or presumptively. Accordingly, the preponderance of the evidence is against the claim for service connection. In reaching the conclusions above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55-57. ORDER Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, major depression, and anxiety, is denied. ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs