Citation Nr: 1513264 Decision Date: 03/27/15 Archive Date: 04/03/15 DOCKET NO. 09-32 150 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran served on active duty from October 1980 to October 2000. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in February 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In January 2013, the Board remanded the claim for additional development. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. FINDING OF FACT The Veteran does not have an acquired psychiatric disorder, to include PTSD, that was caused by his service. CONCLUSION OF LAW An acquired psychiatric disorder, to include PTSD, was not caused by service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f), 3.307, 3.309 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION I. Service Connection The Veteran contends that he has an acquired psychiatric disorder, to include PTSD, that was caused by his active duty service. In his stressor statements, received in 2008, he reported that during service in Kuwait in 1997 he traveled down a road called "Dead Goat Road" for about four hours a day, and that he was in fear of IEDs (improvised explosive devices) and land mines. He further stated that his convoy became lost on one occasion while driving in Kuwait, which was very stressful. He has indicated that he once had a panic attack related to his fear, at which time he feared he had a heart attack, and that he was evacuated to Landstuhl, Germany, for treatment. See Veteran's stressor statements (VA Forms 21-0781), received in August 2008. The Veteran also has stated that four members of his unit were killed in a motor vehicle accident (MVA) in Killeen, Texas in 1998, which he did not witness. See Veteran's statement (VA Form 21-4138), received in February 2009. In February 2009, the RO denied the claim, which it characterized solely as a claim for PTSD. Evidence of record at the time showed that the Veteran had been diagnosed with a number of acquired psychiatric diagnoses other than PTSD. In its January 2013, remand, the Board recharacterized the issue as stated on the cover page of this decision to address all possible theories of causation. Clemons v. Shinseki, 23 Vet. App. 1 (2009); Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009). The Board notes that a few VA progress notes have been received following the issuance of the most recent supplemental statement of the case in May 2013, and that they are not accompanied by a waiver of RO review. See 38 C.F.R. § 20.1304 (2014). However, this evidence does not contain any relevant findings, and the Board has determined that this evidence is not "pertinent" as defined at 38 C.F.R. § 20.1304(c) (2014). Accordingly, a remand for RO consideration is not required. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted on the basis of a post-service initial diagnosis of a disease, when "all of the evidence, including that pertinent to service, establishes that the disease was incurred during service." See 38 C.F.R. § 3.303(d). Applicable regulations provide that 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. See 38 C.F.R. § 3.304(f). The Veteran's service treatment records do not show treatment for psychiatric symptoms, or a diagnosis of an acquired psychiatric disorder. Reports, dated between October and November of 1997, show that the Veteran was treated for complaints of dyspnea and chest pain. He was evacuated to Landstuhl, Germany. His assessments included dyspnea, mild bronchial hyperreactivity, benign ectopic beats, SOB (shortness of breath) /DOE (dyspnea on exertion), chest pain, ventricular ectopies, lightheadedness, and hyperactive airway disease. The Veteran's retirement examination report, dated in April 2000, does not note a psychiatric disorder. In the associated "report of medical history," he indicated that he did not have a history of "depression or excessive worry," or "nervous trouble of any sort" providing factual evidence against his own claim. As for the post-service medical evidence, it consists of VA and non-VA reports, dated between 2001 and 2013. VA progress notes show that in February 2003, the Veteran indicated on several occasions that he had feeling of depression, and little interest or pleasure in doing things; there was no diagnosis. Progress notes, dated as early as 2007, note PTSD, and an adjustment disorder with anxiety, and show psychiatric treatment. Reports from the Vet Center, dated in 2008, contain notations of PTSD and show group treatment for PTSD. A VA PTSD examination report, dated in October 2009, shows that the examiner stated that the Veteran's claims file had been reviewed. The diagnosis was adjustment disorder with anxiety. In January 2013, the Board remanded the claim for an examination and etiological opinion. A VA PTSD examination report, dated in May 2013, shows that the examiner stated that the Veteran's claims file had been reviewed. The diagnosis was dysthymic disorder. The examiner specifically stated that the criteria for PTSD were not met. The examiner concluded that it was less likely as not (less than a 50/50 probability) that the Veteran's adjustment disorder was caused by or a result of his service, to include any incident of service that would be consistent with the circumstances, conditions or hardships of his service, and the stressor of being evacuated out of Kuwait due to a medical emergency, and knowing four service members who were killed in an MVA that he did not witness. The examiner explained that the Veteran's emotional difficulties were longstanding and likely pre-dated his service. The examiner further stated that the Veteran had taken a PAI (personality assessment inventory) and that the results suggested he had attempted to portray himself in a negative or pathological manner, distorting his clinical picture either for symptom attention and/or exaggeration. He presented a combination of features that were quite atypical and unusual for clinical populations but were relatively common among individuals feigning a mental disorder. There was a strong suggestion of response distortion. Two screening tests (the BDI-II and BAI) were felt to be highly suspect and possibly indicative of feigning of a mental disorder when compared with the primary examination interview and the PAI results. Such a finding by the examiner provides highly probative factual evidence against this claim, clearly suggesting the Veteran has not provided accurate information to the VA. The Veteran's service personnel records show that his principal duties primarily involved food service, to include cook, first cook/shiftleader, food service supervisor, and battalion mess sergeant, senior food operations sergeant, and dining facility manager. The Veteran's discharge (DD Form 214) shows that his military occupation specialty was food service specialist, and that he served in Southwest Asia (Kuwait) between September and December of 1997. In December 2008, the U.S. Army and Joint Services Records Research Center (JSRRC) reported that it could not verify any of the claimed stressors (other than the MVA-related stressor, which had not been claimed at that time). Inasmuch as the Board has determined that PTSD is not currently shown, discussed infra, the issue of verified stressors or relevant service for a PTSD claim are downstream issues which will not be further discussed. See Gilpin v. West, 155 F.3d 1353 (Fed.Cir. 1998). The Board finds that the evidence is insufficient to show that the Veteran currently has PTSD. In fact, there is highly significant medical evidence against such a finding, as noted above. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (under 38 U.S.C.A. §§ 1110 and 1131, an appellant must submit proof of a presently existing disability resulting from service in order to merit an award of compensation). The October 2009 and May 2013 VA PTSD examination reports both show that the examiners specifically indicated that the Veteran does not have PTSD. The May 2013 opinion, in particular, is considered highly probative, as it is shown to have been based on a review of the Veteran's claims file, and as it is accompanied by sufficient explanations and findings. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Neives- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Accordingly, while there are some indications of this problem, as noted above, the Board finds that the preponderance of the evidence is against the claim, and that the claim must be denied. In reaching this decision, the Board has considered the findings of PTSD in VA progress notes, and records from the Vet Center. However, none of these reports are shown to have been based on a review of the Veteran's claims file or any other detailed and reliable medical history. Prejean. Furthermore, these reports warrant less probative weight as none of them contain an analysis or discussion as to whether or not all of the criteria for PTSD were met. See Neives-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Quick Reference to the Diagnostic Criteria from DSM-IV at 209-11 (American Psychiatric Association 1994); see also Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (recognizing the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence"). Simply stated, the best medical evidence in this case provides highly probative evidence against the Veteran's claim. Accordingly, the claim must be denied. The Board has construed the Veteran's claim very broadly, to include a claim for an acquired psychiatric disorder other than PTSD. Clemons. The Veteran's service treatment records have been discussed. They show that he was not treated for psychiatric symptoms during service. The Veteran's April 2000 separation examination report, and associated report of medical history, do not note a psychiatric condition, or any relevant complaints or symptoms. Given the foregoing, a chronic condition is not shown during service. See 38 C.F.R. § 3.303(b). Following service, in 2007, the Veteran was diagnosed with PTSD, and an adjustment disorder with anxiety. This was about seven years after separation from service. In any event, the Veteran is not shown to have been diagnosed with a disorder listed at 38 C.F.R. § 3.309(a), and the U.S. Court of Appeals for the Federal Circuit has held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic at 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). There is no competent opinion in support of the claim. The only competent opinions are found in the May 2013 VA examination report, in which a VA physician concluded that the Veteran's dysthymic disorder was unrelated to his service. Finally, there is no evidence to show that a psychosis was manifested to a compensable degree within one year of service. 38 C.F.R. §§ 3.307, 3.309. Accordingly, the claim must be denied. With regard to the appellant's own contentions, although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, they fall outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Acquired psychiatric disorders are not the type of conditions that are readily amenable to mere lay diagnosis or probative comment regarding their etiology, as the evidence shows that specific findings are needed to properly assess and diagnose these disorders. Jandreau; Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). The issue on appeal is based on the contention that an acquired psychiatric disorder, to include PTSD, is related to the Veteran's service. The Board has determined that PTSD is not currently shown, and that acquired psychiatric disorders are not the types of conditions that are readily amenable to mere lay diagnosis or probative comment regarding their etiology. Id. The Veteran's service treatment reports and post-service medical records have been discussed. The Veteran has been found not to have PTSD. An acquired psychiatric disorder is not shown until well after separation from service, and a competent opinion has been obtained that weighs against the claim. Given the foregoing, the Board finds that the medical evidence outweighs the appellant's contentions to the effect that he has the claimed condition due to his service. Madden v. Gober, 125 F. 3d 1477, 1481 (Fed. Cir. 1997). The factual evidence in this case, including some prior statements of the Veteran and other issues cited above, also provide significant evidence against this claim. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). II. Duty to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified via a letter dated in March 2008 of the criteria for establishing service connection, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. He also was notified of how VA determines disability ratings and effective dates if service connection is awarded. This letter accordingly addressed all notice elements. Nothing more was required. The claim was readjudicated as recently as May 2013. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). The RO also provided assistance to the appellant as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. It appears that all known and available service medical reports, and post-service records relevant to the issue on appeal have been obtained and are associated with the Veteran's claims files. The RO has obtained the Veteran's VA and non-VA medical records. The Veteran has been afforded two examinations and the reports show that both of the examiners concluded that the Veteran does not have PTSD, and one opinion weighs against the claim for an acquired psychiatric disorder other than PTSD. In January 2013, the Board remanded this claim. The Board directed that the Veteran be afforded an examination, and that an etiological opinion be obtained. In May 2013, this was done. Under the circumstances, the Board finds that there has been substantial compliance with its remand. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). In summary, the Board finds that the available medical evidence is sufficient for an adequate determination of the claim on appeal. There has been substantial compliance with all pertinent VA laws and regulations and to move forward with this claim does not cause any prejudice to the Veteran. ORDER Service connection for an acquired psychiatric disorder, to include PTSD, is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs