Citation Nr: 1341332 Decision Date: 12/16/13 Archive Date: 12/31/13 DOCKET NO. 11-06 291 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a depressive disorder. REPRESENTATION Appellant represented by: Minnesota Department of Veterans Affairs ATTORNEY FOR THE BOARD Michael Sanford, Associate Counsel INTRODUCTION The Veteran had active service from September 1966 to September 1968 (with other unconfirmed service). This matter comes before the Board of Veterans' Appeals (Board) from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Saint Paul, Minnesota. The issue of entitlement to service connection for a depressive disorder addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran has not been diagnosed with PTSD. CONCLUSION OF LAW The criteria for service connection for PTSD have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 4.125(a) (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 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). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Veteran received notification prior to the initial unfavorable agency decision through a notice letter dated February 2009. This notice letter informed the Veteran of what evidence would be necessary to substantiate his claim of service connection for PTSD. Further, the notice letter requested that the Veteran inform VA about the events giving rise to his purported PTSD. The duty to notify the Veteran was satisfied under the circumstances of this case. 38 U.S.C.A. § 5103. VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2013). Service treatment records are associated with the claims file. VA also attempted to obtain psychiatric records from Charlotte Hungerford Hospital. See December 2011 Request for Records Letter. However, in a letter dated January 2012, that institution responded that records older than ten years old, of which the Veteran's would have been, are purged. As such, no reasonable possibility exists that further assistance in obtaining those records would aid in substantiating the claim. To date, no further records outside the claims file have been identified by the Veteran. VA also satisfied its duty obtain a medical opinion when required. See 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). In December 2009, the Veteran was provided a VA examination to determine the nature and etiology of any psychological disorders diagnosed to the Veteran. With respect to the Veteran's PTSD claim, the examination and opinion are adequate. The examiner ruled out a diagnosis of PTSD with express reference to the criteria enunciated by the DSM-IV. See 38 C.F.R. § 4.125(a) (2012) (service connection for PTSD requires a diagnosis of PTSD under the standards of the DSM-IV). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issues on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). Analysis The Veteran contends that he suffers from PTSD related to an incident where he carjacked while serving on active duty. The Veteran recounted that he was threatened with a knife during the incident. Under 38 U.S.C.A. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence. In Timberlake v. Gober, 14 Vet. App. 122 (2000), the Court held, in pertinent part, that the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. The Federal Circuit has also held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §1110; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed Cir. 2006). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (conforming with the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed.)) (DSM-IV). 38 C.F.R. § 3.304(f) (2013). In the instant case, no diagnosis of PTSD has been rendered. The evidence of record includes several VA psychiatric treatment records. Indeed, a review of those treatment records shows that the Veteran has been diagnosed with depression, not otherwise specified, several times but he has never been diagnosed with PTSD. See November 2002 VA Treatment Record; August 2002 VA Treatment Record; June 2002 VA Treatment Record. Further, as discussed above, the Veteran was afforded a VA examination in December 2009. As part of that examination, the Veteran was evaluated under the PTSD scale for the DSM-IV. The Veteran reiterated the event that he claims has caused him PTSD. The examiner concluded that the alleged stressor probably was sufficient to meet Criterion A of the DSM-IV criteria. The examiner, however, explained that Criteria B, C, and D were not met. With respect to Criterion B, while the Veteran stated that he has unwanted memories of the event about four to five times per year in the form of a dream, the Veteran does have flashbacks and only had one physical reaction to the incident. Regarding Criterion C, the Veteran reported little difficulty avoiding thinking about the incident. Moreover, the Veteran has a clear memory of the incident and remembers important aspects of the incident and the Veteran does not have diminished interest in the activities that he used to enjoy because of the incident. For Criterion D, the Veteran does not have a history of hypervigilance. Further, while the Veteran has some sleep problems, the examiner did not believe that those sleep problems were related to the Veteran's military service. After considering those criteria, the examiner concluded that a diagnosis of PTSD under the DSM-IV was not appropriate and instead diagnosed the Veteran with depression, not otherwise specified. The Board acknowledges the statements of the Veteran's siblings with respect to the incident that the Veteran claims as his PTSD stressor, as well as their statements relating to the Veteran's change of behavior subsequent to service. However, even assuming the credibility of those statements, statements purportedly confirming the incident and the Veteran's change in behavior are not bases to establish service connection for PTSD. See 38 C.F.R. § 3.304(f) (2013). Instead, as explained above, a mental health professional must make a diagnosis of PTSD in accordance with the DSM-IV. Id. The Board further acknowledges the Veteran's argument that he should be diagnosed with PTSD. See March 2011 Letter from Veteran. The Veteran, however, lacks the appropriate expertise to assert that a diagnosis of PTSD is appropriate. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). As such, the Veteran's assertion that he should be diagnosed with PTSD is not competent and, as such, cannot serve as a basis for concluding that Veteran does have PTSD. In conclusion, there is no competent evidence that the Veteran has been diagnosed with PSTD under the DSM-IV. Indeed, the December 2009 VA examiner expressly considered the criteria for PTSD under the DSM-VI and provided an explanation of why almost all of those criteria were not met with respect to the Veteran. The examiner subsequently ruled out a diagnosis of PTSD under the DSM-IV. Further, the Veteran has never been diagnosed with PTSD by anyone, despite numerous records showing psychiatric treatment. As the Veteran has not been diagnosed with PTSD under the DSM-IV, service connection for PTSD cannot be awarded. See 38 C.F.R. § 3.304(f) (2013). ORDER Entitlement to service connection for PTSD is denied. REMAND The Veteran further claims that he is entitled to service connection for a depressive disorder. He asserts that the in-service incident described above, where he was carjacked, caused his depression. The Veteran's service treatment records (STRs) do not note any psychiatric disorders or problems at entrance to service. Further, separation STRs do not note any psychiatric disorders or problems. Finally, a review of all of the Veteran's STRs does not reveal any evidence of any psychiatric disorders during service. Nonetheless, subsequent to service, the Veteran has been diagnosed with depression, not otherwise specified, several times. See November 2002 VA Treatment Record; August 2002 VA Treatment Record; June 2002 VA Treatment Record. A diagnosis of depression, not otherwise specified, was again rendered at the Veteran's December 2009 VA examination. With respect to the Veteran's depression, the examiner stated "[r]ecords do indicate a history of depression going back to age 17. This is probably not related to military service." December 2009 VA Examination Report. Pursuant to 38 U.S.C.A. § 1111, "every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination." Thus, because no psychiatric disorder was noted upon entry into service, the Veteran is presumed sound. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The burden falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran's disability was both preexisting and not aggravated by service. Given that the Veteran is presumed sound upon entering service, the December 2009 VA examination is inadequate for the purpose of adjudicating this matter. The examiner opined that the Veteran asserted that he has experienced depression since age 17 and that depression was probably not related to service. However, as explained above, given the presumption of soundness, that presumption can only be overcome by clear and convincing evidence that shows the Veteran's depressive disorder preexisted service. Moreover, even if the presumption is overcome, it must also be shown by clear and convincing evidence that Veteran's depressive disorder was not aggravated by his service. The examiner neither opined on whether clear and convincing evidence showed the condition preexisted service or whether clear and convincing evidence showed that the Veteran's condition was not aggravated. Finally to the extent that the examiner was opining that the condition was simply unrelated etiologically to service, not because it preexisted service, the phrase "[t]his is probably not related to service" is insufficient. See Obert v. Brown, 5 Vet. App. 30, 33 (1993) (speculative medical opinions are inadequate). The examiner's statement does not address the probability in terms of likelihood as to whether the Veteran's depressive disorder is etiologically related to his service. As such, clarification is necessary. Accordingly, the case is REMANDED for the following action: 1. Return the claims file to the VA examiner who examined the Veteran in December 2009 to determine the nature and etiology of the Veteran's depression, not otherwise specified. The claims file, including a copy of this remand, must be provided to the examiner in conjunction with the requested opinion. If that VA examiner is unavailable, provide the claims file to another competent mental health professional for the opinion, or if necessary, schedule the Veteran to undergo a comprehensive mental health examination to determine the nature and etiology of any depressive disorder which the Veteran currently suffers from and whether any such disorder is etiologically related to service. The examiner must provide an opinion as to (1) whether the Veteran's depressive disorder preexisted the Veteran's service, if so the examiner should cite to the evidence of record to support that conclusion and stated whether he/she believes the evidence is clear and unmistakable (undebatable) as to show the disorder preexisted service; (2) if the examiner finds that the disorder clearly and unmistakably preexisted service, he/she is also asked to determine if it can be concluded with clear and unmistakable (undebatable) certainty that the preexisting disorder did not undergo a worsening in service to a permanent degree beyond that which would be due to a natural progression of the disability. If it is determined that any depressive disorder did not preexist service, the examiner is further requested to provide an opinion whether there is a 50 percent probability or greater (at least as likely as not) that any currently diagnosed depressive disorder can be related to the Veteran's service. A complete rational for any opinion expressed must be provided. If the examiner determines that he/she cannot provide an opinion on the issue at hand without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. See Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). 2. The AMC/RO must ensure that the medical examination report and requested opinion(s) comply with this remand and the questions presented in the request. If the report is insufficient, it must be returned to the examiner for necessary corrective action, as appropriate. See Stegall, 11 Vet. App. 268 (1998). 3. After undertaking any other development deemed appropriate the readjudicate the issue of service connection for a depressive disorder. If the benefit sought is not granted, the Veteran, and his agent, should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for further review. Thereafter, the case should be returned to the Board for further appellate review. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is notified that such action is required. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs