Citation Nr: 1418559 Decision Date: 04/25/14 Archive Date: 05/02/14 DOCKET NO. 09-32 327 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD) and schizophrenia. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD B. Thomas Knope, Counsel INTRODUCTION The Veteran served on active duty from March 1966 to March 1968. This matter is on appeal from a September 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. This appeal was remanded by the Board in April 2011 and July 2013 for further development and is now ready for disposition. FINDINGS OF FACT 1. Schizophrenia or any other psychotic disorder was not shown in service or for many years thereafter, and is unrelated to active duty service. 2. PTSD is not currently shown. CONCLUSION OF LAW A psychiatric disability, claimed as PTSD and diagnosed as schizophrenia, was not incurred in or aggravated by service, and is not related to service. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating claims for VA benefits. 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(a) (2013). Proper notice from VA must inform the claimant and representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(b) (2013); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice requirements apply to all five elements of a service-connection claim, to include Veteran status, existence of a disability, a connection between service and the disability, degree of disability, and effective date of the disability. Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded should be included. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The appellant has not alleged prejudice with respect to notice, as is required, and none is found by the Board. Shinseki v. Sanders, 556 U.S. 396 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The duty to notify was satisfied by a letter sent to the appellant in April 2008 that fully addressed all notice elements and was sent prior to the initial RO decision. The letter informed him of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. It also provided notice of what type of information and evidence was needed to establish a disability rating, and notice of the type of evidence necessary to establish an effective date. Therefore, adequate notice was provided to the appellant. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(b) (2013). VA also has a duty to assist an appellant in the development of a claim. That duty includes assisting in the procurement of service medical records and other pertinent records, and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2013). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed. Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the appellant's VA outpatient treatment records, and the appellant submitted treatment records from a private facility and his own statements in support of his claim. VA examinations with respect to the issue on appeal were also obtained in May 2011 and October 2013. 38 C.F.R. § 3.159(c)(4) (2013). When VA provides an examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examinations obtained in this case are adequate. They are predicated on a full understanding of the Veteran's medical history, and provide a sufficient evidentiary basis for the claim to be adjudicated. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4) (2013). This appeal was remanded by the Board in April 2011 and July 2013 for further development. The Board is satisfied there was substantial compliance with the remand instructions. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). Specifically, the Veteran was provided notice of how to establish service connection for PTSD based on a personal assault. Thus, no further notice or assistance is required to fulfill VA's duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection The Veteran claims entitlement to service connection for a psychiatric disability, which he has characterized as PTSD. In his August 2008 statement, he specifically alleged that it was due to his involvement in a combat exercise known as "pugil sticks," where Marine recruits spar with each other using large padded sticks. He stated that he was "hit consistently in the head and neck area" during that training, and started to quit because he "thought it was not necessary and it was unjust." He also remembers his platoon leaders laughing at him, and that he could not complain because that "would have made matters worse." Since that time, he stated that he felt shame and it has caused him to experience problems with his emotions and engage in self-destructive behavior. That behavior has led to loss of employment and to a subsequent period of incarceration. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2013). Generally, the evidence must show: (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 or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498 (1995). An alternative method of establishing service incurrence and relationship to service is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease. Psychoses, to include schizophrenia, are qualifying chronic diseases. 38 C.F.R. §§ 3.303(b), 3.309(a) (2013); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection by demonstration of continuity of symptomatology is applicable for a diagnosis of schizophrenia, but not for a non-psychosis mental disorder. Chronic diseases are also subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of the disease during service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2013). In order to establish service connection for PTSD, there must be a medical diagnosis of PTSD 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) (2013). A diagnosis of PTSD must meet the requirements of the American Psychiatric Association's Diagnostic and Statistical Manual on Mental Disorders, Fourth Edition (DSM-IV). 38 C.F.R. § 4.125(a) (2013). Under the DSM-IV, a valid diagnosis of PTSD requires that a person has been exposed to a traumatic event in which both of the following were present: (1) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of himself or others, and (2) the person's response involved intense fear, helplessness, or horror. If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(1) (2013). Where VA determines that the Veteran did not engage in combat with the enemy or that the Veteran engaged in combat with the enemy but the claimed stressor is unrelated to the combat, the Veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor. Instead, the record must contain evidence that corroborates the Veteran's testimony as to the occurrence of the claimed stressor. 38 U.S.C.A. § 1154(b) (West 2002 & Supp. 2013); 38 C.F.R. § 3.304(d), (f) (2013); West v. Brown, 7 Vet. App. 70 (1994). However, there are two exceptions to this rule. First, for claims of PTSD based on a personal assault in service, evidence from sources other than the Veteran's service records may corroborate the account of the stressor incident. Examples of that evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. 38 C.F.R. § 3.304(f)(4) (2013). Second, the extensive development normally required to corroborate stressors asserted by non-combat veterans is not required where lay testimony alone can established the occurrence of certain in-service stressors involving the fear of hostile military or terrorist activity, if there is a diagnosis of PTSD by a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, related to the fear of hostile military or terrorist activities. 38 C.F.R. §3.304(f)(3) (2013). Fear of hostile military or terrorist activity means that a Veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. 38 C.F.R. § 3.304(f)(3) (2013). The Board is able to determine from the Veteran's service personnel records and his service separation from that he did not engage in combat with the enemy during service. There is no indication of combat or any awards or commendations indicative of combat, and the Veteran has not asserted engaging with hostile forces. Therefore, the provisions of 38 U.S.C.A. § 1154(b) (West 2002 & Supp. 2013) are not for application. Moreover, the evidence does not indicate that the Veteran has been in a situation where there would be a fear of hostile activity, as is contemplated by C.F.R. § 3.304(f)(3) (2013), nor has the Veteran so asserted. Hall v. Shinseki, 717 F.3d 1369 (2013) (fear of hostile or terrorist activity does not include fear of fellow service members). Therefore, those provisions are also not for application. The Board finds that service connection is not warranted for PTSD regardless of what regulations are applied, as there is no diagnosis of PTSD. At a May 2011 VA examination that was specifically directed toward the issue on appeal, the Veteran stated that he has made a lot of friends since leaving active duty and currently had eight close friends. However, he had a history of family difficulties and periods of incarceration. Upon examination, he appeared clean and groomed, and his speech was unremarkable. His affect was normal, although he stated that he was "pissed off" due to his tinnitus. Grandiose and paranoid delusions were observed, and the Veteran stated that he heard voices when he watched television. After the Veteran related the nature of his stressor, which was the same as the events summarized above, the examiner determined that the Veteran did not meet the DSM-IV diagnostic criteria for PTSD or any other mental health disorder that may be related to his claimed stressor in service. Instead, the diagnosis was limited to a non-specific "psychotic disorder." The examiner also indicated that the Veteran's claimed stressor should not be categorized as a "personal assault" for VA purposes, but was rather a normal combat training exercise that is commonly experienced by all other Marines. At an October 2013 VA examination, the Veteran related a similar history to the one described in May 2011. After a full psychiatric evaluation, that examiner also determined that the Veteran did not meet the DSM-IV criteria for a diagnosis of PTSD. Specifically, the examiner noted the absence of many PTSD symptoms, such as recurrent or obtrusive recollections, psychological distress to external or internal cues, avoidance, diminished interest in social activities, irritability, hypervigilance or many other typical symptoms. Considering the evidence, the Board concludes that PTSD has not been clinically diagnosed pursuant to the criteria of DSM-IV by a mental health professional. As PSTD is not currently shown, service connection for PTSD cannot be granted. Sanchez-Benitez v. West, 25 F.3d 1356 (Fed. Cir. 2001). Next, while the VA examiner did not diagnose PTSD during the May 2011 VA examination, a psychotic disorder was noted and, based on a psychiatric treatment note from July 2013, that diagnosis appears to be schizophrenia. Thus, while PTSD has not been shown, the Board has also considered whether any other current psychiatric disability is related to service. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (a claim for service connection for a psychiatric disability encompasses all psychiatric disabilities that may reasonably be encompassed by evidence of record). However, the Board finds that service connection is also not warranted for any other psychiatric disability. First, the service treatment records do not show complaints of, treatment for, or any diagnosis related to any psychiatric disorder while in service. Significantly, the Veteran's separation physical examination in March 1968 does not show any complaints of or observed symptoms related to schizophrenia or any other psychotic condition. The psychiatric examination in March 1968 was normal. The post-service evidence does not show symptoms related to any psychiatric disorder until a statement in November 2008, where the Veteran complained of constant anger management problems. The Board emphasizes that the first indication of any psychiatric disorder is approximately 40 years after the Veteran separated from active duty. Therefore, a continuity of symptoms is not shown based on the clinical evidence. As part of this claim, the Board has assessed the credibility and probative weight of all relevant evidence, including the competency and credibility of the Veteran's statements. McClain v. Nicholson, 21 Vet. App. 319 (2007). In doing so, the Board may consider factors such as facial plausibility, bias, self-interest, and consistency with other evidence of record. Caluza v. Brown, 7 Vet. App. 498 (1995); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The Veteran not competent to diagnose psychiatric disorders, as they may not be diagnosed by its unique and readily identifiable features, and thus requires a determination that is medical in nature. Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). However, he is competent to testify about observable symptomatology, which may provide sufficient support for a claim of service connection, if credible, regardless of the lack of contemporaneous medical evidence. Barr v. Nicholson, 21 Vet. App. 303 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Rucker v. Brown, 10 Vet. App. 67 (1997); Layno v. Brown, 6 Vet. App. 465 (1994). The Board finds that the Veteran's reported history of continued psychiatric symptomatology since active service, while competent, is nonetheless not credible. Specifically, there is no evidence of a psychiatric disorder in service, and he specifically denied any psychiatric symptoms at the time he left active duty. In fact, he did not allege the presence of psychiatric symptoms until he filed his claim for benefits in March 2008. The fact that his first complaints of symptoms is in conjunction with a claim for benefits lessens his credibility. Therefore, the Board finds that continuity is not established based on the clinical evidence of record or the Veteran's statements. Next, service connection may also be granted when the evidence establishes a medical nexus between active duty service and current complaints. In this case, the Board finds that the weight of the competent evidence does not attribute the Veteran's claimed disorders to active duty, despite his contentions to the contrary. Specifically, there is no clinical indication that the Veteran has a psychiatric disorder that may be related to service. Notably, no treating psychiatrist has suggested such a relationship. Therefore, service connection for his psychotic disorder is not warranted on these bases. In considering this claim, the Board has also considered the statements made by the Veteran relating his psychiatric disorder to his active service. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, the Veteran is not competent to provide testimony regarding the etiology of any psychiatric disorder. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Because psychiatric disorders are not diagnosed by unique and readily identifiable features, they do not involve a simple identification that a layperson is competent to make. Therefore, the unsubstantiated statements regarding the claimed etiology of the Veteran's psychiatric disorder are found to lack competency. In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claim for service connection for a psychiatric disability and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a psychiatric disability is denied. ____________________________________________ HARVEY P. ROBERTS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs