Citation Nr: 1340433 Decision Date: 12/06/13 Archive Date: 12/20/13 DOCKET NO. 05-30 179 ) 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, claimed as nerves and nervous condition. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Amanda Christensen, Associate Counsel INTRODUCTION The Veteran had active service from November 1977 to October 1997. This case comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. In March 2012, the Board remanded the Veteran's claim for additional development and it now returns to the Board for further appellate action. There was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board has not only reviewed the Veteran's physical claims file but also the file on the Virtual VA and VBMS system to insure a total review of the evidence. FINDING OF FACT PTSD is not shown; a bipolar II disorder is not causally or etiologically related to service, to include any injury or event therein. CONCLUSION OF LAW An acquired psychiatric disorder was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be established under 38 C.F.R. § 3.303(b) if a chronic disease or injury is shown in service and subsequent manifestations of the same chronic disease or injury are shown unless clearly attributable to intercurrent causes. Service connection may also be established under 38 C.F.R. § 3.303(b) where a condition in service is noted but is not chronic or where a diagnosis of chronicity may be legitimately questioned, but only for specific chronic diseases not applicable here. See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). This has been interpreted as a three-element test: (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 in or aggravated by service. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Also relevant, service connection for PTSD requires (1) a current medical diagnosis of PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in-service stressor. See 38 C.F.R. § 3.304(f). The diagnosis of PTSD must comply with the criteria set forth in the Diagnostic and Statistical Manual of Mental Disorders, 4th edition, of the American Psychiatric Association (DSM-IV). Id.; see also 38 C.F.R. § 4.125(a). On July 13, 2010, VA published a final rule that amended its adjudication regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the required in-service stressor. 75 Fed. Reg. 39843 (July 13, 2010). This revision adds to the types of PTSD claims that VA will accept through credible lay testimony alone as being sufficient to establish occurrence of an in-service stressor without undertaking other development to verify the Veteran's account. The amended 38 C.F.R. § 3.304(f) eliminates the requirement for corroborating evidence of a claimed in-service stressor if it is related to a veteran's "fear of hostile military or terrorist activity." In place of corroborating reported stressors, a medical opinion must instead be obtained from a VA, or VA contracted, psychiatrist or psychologist. The amended regulation applies to this claim. The Veteran had 20 years of active service, including service in the Persian Gulf in early 1991 and he is the recipient of both the Southwest Asia Service Medal and the Kuwait Liberation Medal. Service treatment records show that in 1996 he reported insomnia. At his separation examination in September 1997, he complained of depression or excessive worry, nervous trouble, and frequent trouble sleeping, but was psychiatric evaluation was normal. He had been prescribed Benadryl for insomnia in 1996 and his sleep problems were related to stress. He further noted that the Veteran's episodes of stress and depression were controlled at the present. Therefore, no chronic psychiatric disorder was noted at service separation. In October 2003, the Veteran sought treatment for agitation, confusion, anxiety, insomnia, and nightmares related to war experiences. He also complained of irritability with frequent outbursts of aggressive behavior and auditory hallucinations such as hearing a baby crying. It was noted that he had first been evaluated at the clinic in June 2002 and was diagnosed with anxiety disorder, not otherwise specified, posttraumatic stress disorder (PTSD) traits, and cyclothymic disorder. The current diagnoses were cyclothymic disorder, domestic violence, and PTSD traits. He was advised to undergo supportive psychotherapy. The record reflects on-going treatment with diagnoses of depressive disorder, cyclothymic disorder, PTSD (with 1 positive and 2 negative screens) and, consistently since 2006, a bipolar II disorder. However, none of the treating health care providers rendered an opinion on whether the Veteran's psychiatric disorders were related to service. In an April 2009 VA examination, the Veteran reported that he began experiencing anxiety, fearfulness, apprehensiveness, indecisiveness, and trouble sleeping when he returned from Desert Storm in 1990. The diagnosis was bipolar disorder, not otherwise specified. The examiner found that the Veteran's psychiatric disorder was not related to service. Her rationale was that there were no psychiatric complaints or findings in service, he had a normal psychiatric evaluation at the time of service separation, there was no relevant medical care rendered within one year of service separation, and that he did not seek psychiatric care until five years after his discharge from service. This evidence is competent and credible and weighs against the claim. In a June 2012 VA examination, the Veteran reported that he saw many dead soldiers while in service and also narrated different war scenes. The examiner found that the Veteran had been exposed to a traumatic event that involved actual or threatened death or serious injury or a threat to the physical integrity of self or others. However, the examiner did not find that the Veteran's response involved intense fear, helplessness, or horror. Further, the examiner found that the traumatic event was not persistently re-experienced, there was no persistent avoidance of stimuli associated with the trauma or numbing of general responsiveness, and no persistent symptoms of increased arousal. Therefore, the examiner concluded that although the Veteran meets the DSM-IV stressor criteria for PTSD, he did not meet the symptoms criteria. The diagnosis was bipolar II disorder. The examiner opined that the Veteran's mental condition started after 2001 and was not related to service. The examiner further opined that the Veteran did not develop a stress disorder or any mental condition related to a fear of hostile military activity and his bipolar disorder was not related to service. This evidence is competent and credible and weighs against the claim. With respect to PTSD, the evidence does not show a diagnosis of PTSD in accordance with the DSM-IV criteria. In 2002, he was noted to have PTSD traits and in 2004 he screened positive for PTSD (with 2 other negative PTSD screens); however, on examination he has never been diagnosed with PTSD. Moreover, the June 2012 VA examiner specifically found that the Veteran did not have PTSD, explaining that although he had experienced a stressor meeting the criteria, he did not meet the symptoms criteria of reexperincing the event, avoiding stimuli associated with the trauma, and persistent signs of increased arousal. With respect to a bipolar disorder, both the April 2009 and June 2012 examiners specifically opined that the Veteran's bipolar disorder was not related to service. The April 2009 examiner cited that there were no psychiatric complaints or findings in service, the Veteran had a normal psychiatric evaluation at the time of service separation, and he did not seek psychiatric care until five years after his discharge from service. Significantly, there is no contradictory medical evidence of record. The Board has considered the Veteran's lay statements that his psychiatric disorder is related to service. While he is competent to state what symptoms he feels, the etiology of psychiatric disorders is a complex medical question not capable of lay observation and is not the type of medical issue for which a lay opinion may be accepted as competent evidence. As a lay person, he does not have the education, training and experience to offer an opinion as to the onset or etiology of his disorders. As such, his lay statements, while credible, are not competent to establish a diagnosis or etiology. Therefore, the preponderance of the competent and credible evidence is against the claim. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. As such, the appeal is denied. Finally, 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Duty to notify letters were sent to the Veteran in September 2003 and April 2009, including the criteria for establishing service connection and information on how disability ratings and an effective date for the award of benefits is assigned if service connection is awarded. Consequently, the Board finds that adequate notice has been provided. Duty to assist was undertaken when the RO obtained VA treatment records. The Veteran also submitted private treatment records. Further, he was scheduled for a hearing before a Veterans Law Judge but failed to appear. He also failed to respond to an April 2012 letter from VA requesting information with respect to fear of hostile military or terrorist activity. In addition, he was given an opportunity to sign and return an authorization that would have permitted VA to seek additional private records to substantiate his claim, but he failed to send back an executed authorization. The Veteran underwent VA examinations in April 2009 and June 2012. The examiners, medical professionals, obtained an accurate history and listened to the Veteran's assertions. The examiners provided the Board with sufficient information to determine the nature and etiology of the Veteran's disorder. Therefore, the Board finds that the examinations are adequate and contain sufficient information to decide the issues on appeal. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. Significantly, neither he nor his representative has 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. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. ORDER Service connection for an acquired psychiatric disorder is denied. ____________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs