Citation Nr: 1341472 Decision Date: 12/16/13 Archive Date: 12/31/13 DOCKET NO. 09-07 230 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD N. Rippel, Counsel INTRODUCTION The Veteran served on active duty from April 1961 to April 1963. This matter come before the Board of Veterans' Appeals (Board) on appeal from October 2007 (service connection for a back condition and PTSD), March 2010 (service connection for major depressive disorder with anxiety), and April 2011 (reconsideration of service connection for major depressive disorder with anxiety) rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In February 2013, the Veteran testified at a Videoconference hearing before the undersigned Acting Veterans Law Judge. A copy of the hearing transcript is of record. In March 2013, the Board remanded this matter to the RO via the Appeals Management Center (AMC) for additional action. That action has been completed and the claim has been returned to the Board. Although the claim certified for appellate review was characterized as entitlement to service connection for PTSD, the Board observes, as it did in the March 2013 remand, that VA treatment records show additional psychiatric diagnoses of major depressive disorder with anxiety and mood disorder due to general medical condition. In light of the Court's decision in Clemons v. Shinseki, 23 Vet. App. 1 (2009), the issue as stated on the cover page has been restyled. The record in this case includes Virtual VA and VBMS electronic claims files. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. PTSD has not been present during the period of this claim. 2. No acquired psychiatric disorder was present until more than one year following the Veteran's discharge from service, no acquired psychiatric disorder present during the period of this claim is etiologically related to the Veteran's active service, and any such disability was not caused or worsened by service-connected disability. CONCLUSION OF LAW A psychiatric disability, including PTSD, was not incurred in or aggravated by active service, the incurrence or aggravation of a psychosis during such service may not be presumed and current psychiatric disability is not proximately due to or the result of service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.304(f), 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has a duty to provide notification to the Veteran with respect to establishing entitlement to benefits, and a duty to assist with development of evidence under 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159(b). The duty to notify was satisfied following the initial RO decision by way of a letter sent to the Veteran following the Board remand. This letter, dated in June 2013, informed him of his duty and the VA's duty for obtaining evidence. In addition, the letter met the notification requirements set out for service connection in Dingess v. Nicholson, 19 Vet. App. 473 (2006). Although the Veteran was not provided all required notice until after the initial adjudication of the claim, the Board finds that there is no prejudice to the Veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that following the provision of the required notice and the receipt of all pertinent evidence, the AMC readjudicated the claim. There is no indication or reason to believe that the ultimate decision of the originating agency on the merits of the claim would have been different had complete VCAA notice been provided at an earlier time. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim). VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment 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 relevant facts have been properly developed, and that all available evidence necessary for equitable resolution of the issue has been obtained. Consistent with the Remand instructions, the AMC undertook to verify the Veteran's stressors which were set forth in detail in the Remand. In August 2013, it made a formal finding, based on communications with the U.S. Army & Joint Services Records Research Center (JSRRC), that one of the Veteran's stressors was conceded as verified. Specifically, the stressor wherein the Veteran reported that he had witnessed a lightning strike and multiple service members were killed at Fort Benning was verified. Despite his assertions that he experienced stressors associated with his service in Cuba during the Cuban missile crisis and at the Berlin Wall, these other stressors did not prove capable of verification by VA through available channels. The Veteran's service treatment and personnel records, VA treatment records, and lay statements have been obtained. A mental health examination was accomplished in August 2013 and an opinion regarding the Veteran's claim was rendered. As instructed by the Board, the examiner commented on the allegation that the Veteran's hearing loss and tinnitus have caused or contributed to present mental health disability. The examination is deemed adequate inasmuch as it addresses all relevant rating criteria. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In addition, the Board finds the opinion to be fully responsive to the Board remand instructions. The Veteran has not indicated there are any additional records that VA should obtain on his behalf. Thus, the Board finds that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claim, and no further assistance to develop evidence is required. Law and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially 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). Service connection for certain chronic disabilities, including psychoses, may be granted on a presumptive basis if manifested to a compensable degree within one year after separation from service. 38 U.S.C.A. §§ 1101, 1112, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309. Service connection may be granted for disability which is proximately due to or the result of service-connected disability. 38 C.F.R. § 3.310(a) (2006-2013). Additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability is also compensable under 38 C.F.R. § 3.310(a). Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Generally, 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). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2013); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Legal Analysis The Veteran has urged, through testimony before the undersigned and in written statements, that he has psychiatric disability, to include PTSD, depression, and anxiety, due to service. In the alternative, he urges that he has these mental health issues due to his service-connected bilateral hearing loss and tinnitus. As an initial matter, the Veteran does not contend, and the evidence of record does not show, that the Veteran suffers from a psychosis, or that he had psychosis during or within one year of separation from service. Therefore, service connection is not warranted under such theories of service connection. As to the Veteran's assertion of service connection for PTSD or other acquired psychiatric disability initially diagnosed after service, based on the fact that all the evidence, including that pertinent to service, establishes that the disease was incurred in service, the Board notes that he has not presented competent medical evidence showing that he has current psychiatric disability due to service. Also, as to the claim of secondary service connection, the preponderance of the evidence is against the claim. The Board finds for the reasons that follow that his assertions are outweighed by the more probative evidence to the contrary. Available VA treatment records currently associated with the claims file date from September 2006 on include a May 2007 psychiatric consultation showing diagnoses of chronic PTSD, major depressive disorder with anxiety, and mood disorder due to general medical condition. At that time, the Veteran related his psychiatric symptoms to his alleged in-service stressors pertaining to guard duty on the Berlin Wall and the Cuban Missile Crisis. As explained above, these incidents have proven to be unverifiable and inconsistent with his service personnel record, and thus cannot be considered valid stressors to support a diagnosis of PTSD for service connection. In August 2007, he related that he witnessed multiple recruits get struck by lightning and die gruesomely during a basic field training exercise. He was reportedly most troubled by that event and had difficulty talking about it. In a March 2011 VA audiology evaluation, the examiner opined that the occupational effects of hearing loss included poor social interaction. Thereafter, the Veteran underwent VA mental health examination in August 2013 to determine whether there is a current diagnosis of PTSD which comports with DSM IV criteria for diagnosis of PTSD. The examiner reviewed the electronic claims folder including the VA memorandum regarding the verified stressor, CPRS medical records, Trauma Symptoms Inventory, Beck Depression Inventory, and Beck Anxiety Inventory. The examiner opined that the Veteran's symptoms did not meet the diagnostic criteria for PTSD under DSM-IV criteria. She made a diagnosis of depressive disorder. As to PTSD, she found that the Veteran did not meet the criteria for PTSD. She explained as follows: The Veteran does not meet the DSM-IV-TR diagnostic criteria for the diagnosis of PTSD based on objective test results and diagnostic clinical interview from this examination. There is no objective evidence or data to support the diagnosis of PTSD at this time. His responses on the Trauma Symptoms Inventory rendered the test invalid due to overendorsement of atypical items. Previous diagnosis of PTSD was based on the Veteran's subjective report of symptoms with no objective data to support the clinical diagnosis. The Veteran's reported symptoms do meet the DSM-IV-TR diagnostic criteria for the diagnosis of Depressive Disorder NOS. He does not meet full criteria for the diagnosis of Major Depressive Disorder but does endorse some symptoms of depression including depressed mood, frequent tearfulness, and occasional self-isolation. His military service treatment records are entirely negative for complaints, treatment or diagnosis of depression, anxiety, PTSD or other Axis I mood disorder. He had no treatment following his discharge from military service in 1963 until many years later. There is no evidence to suggest that his symptoms are caused by or related to his military service. It is the examiner's opinion that it is less likely than not that Veteran's current Depressive Disorder NOS is related to his military enlistment. It is the examiner's opinion that his Depressive Disorder NOS is not due to, or aggravated by the Veteran's service-connected bilateral hearing loss and tinnitus disabilities. Veteran demonstrated little difficulty in hearing during this interview. This opinion is based on review of the Veteran's VBMS e-file with military service records, CPRS mental health records, subjective reported level of symptoms, DSM-IV diagnostic criteria, diagnostic clinical interview, objective test results from this examination, and training and experience of this examiner. SPECIAL NOTICE: Please Note that Section 3: Stressors and Section 4: PTSD Diagnostic Criteria have been intentionally left blank because the diagnosis of PTSD was not made based on objective test results. Based on the above, the Board finds that the preponderance of the evidence is against the claim. The Veteran does not have a valid diagnosis of PTSD during the pendency of the claim. Also, the weight of the probative evidence demonstrates that the current psychiatric disabilities are not related to service or to service-connected hearing loss or tinnitus. The August 2013 examiner's opinion is well-supported and is considered evidence that is wholly against the claim. Under Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993), the Board must assess the credibility and weight to be attached to medical opinions. Provided these opinions include adequate statements of reasons or bases, the Board may favor one opinion over another. Wray v. Brown, 7 Vet. App. 488 (1995). An assessment or opinion by a health care provider is never conclusive and is not entitled to absolute deference. Rather, the Board must consider the weight to be placed on an opinion depending upon the reasoning employed to support the conclusion and the extent to which the physician reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). In this case, the 2013 VA opinion is competent, persuasive and probative evidence against the claim, and it is uncontroverted by any competent evidence inasmuch as it is the only opinion which was based on the entire evidence of record. The opinion, wholly against the claim, is adopted by the Board. In this regard, the Board recognizes the Veteran's own opinion. While he is competent to observe changes in mood, he has not been shown to have the medical/mental health training or credentials to attribute those symptoms to a chronic disability such as PTSD or depression or to ascertain when such chronic disability arose. For this reason, his opinion, however well-intentioned, is of no more than very minimal probative value, particularly compared to the 2013 VA opinion. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) Accordingly, the Board must conclude that service connection is not warranted for psychiatric disability. In arriving at the decision to deny the claim, the Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. ORDER Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) is denied. ____________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs