Citation Nr: 1513572 Decision Date: 03/30/15 Archive Date: 04/03/15 DOCKET NO. 11-28 296 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Kentucky Department of Veterans Affairs ATTORNEY FOR THE BOARD T. Yvette Hawkins, Counsel INTRODUCTION The Veteran served on active duty from February 1967 to February 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In August 2014, the Board remanded the Veteran's claim to the Agency of Original Jurisdiction (AOJ) for additional development, to include attempting to obtain additional treatment records and another VA examination. For the reasons set forth below, the Board concludes that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board has recharacterized the issue of entitlement to service connection for PTSD to more broadly encompass entitlement to service connection for an acquired psychiatric disorder, to include PTSD, pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that when a claimant makes a claim, he is seeking service connection for symptoms, regardless of how those symptoms are diagnosed or labeled). This appeal was processed using the Veterans Benefits Management (VBMS) and Virtual VA paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into consideration the existence of these electronic records. FINDINGS OF FACT The Veteran has refused to cooperate in the development of his claim. The Veteran does not have PTSD or any psychiatric disorder caused by active service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, to include PTSD, have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.304(f) (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2014). When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2014); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his or her possession that pertains to the claim. Element (4), the requirement of requesting that the claimant provide any evidence in his or her possession that pertains to the claim, was eliminated by the Secretary of VA (the "Secretary") in 2008. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini, effective May 30, 2008). The VCAA notice requirements apply to all five elements of a service connection claim. These are: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Of particular importance, in Dingess/Hartman, the Court held that the VCAA notice must include notice that a disability rating and an effective date of the award of benefits will be assigned if service connection is awarded. VA satisfied the requirements of the duty to notify by means of a letter dated in October 2010. VA's duty to assist has also been satisfied. The claims file contains the Veteran's service and post-service treatment records, and VA PTSD examination reports dated in February 2011 and October 2014. Additionally, the claims file contains the Veteran's personal statements in support of his claim. Review of the February 2011 examination report shows that the examiner reviewed the claims folder, obtained a history of symptomatology and treatment from the Veteran, performed a comprehensive examination and provided a sound explanation for her findings that the Veteran neither met the criteria for a diagnosis or PTSD, nor had a diagnosis of any other acquired psychiatric disorder related to active duty service. In August 2014, the Board remanded the Veteran's claim in order to attempt to secure additional mental health treatment records mentioned by the Veteran in his application for benefits. In a September 2014 letter, the AOJ notified the Veteran that it was scheduling him for a second VA examination and enclosed a form to allow him to provide the names and dates for which he received private and community mental health treatment to allow VA to obtain such records. However, because the Veteran failed to respond to the letter, a search for these records could not be undertaken. Although the Veteran appeared for his scheduled VA examination in October 2014, the examination report shows that he failed to cooperate with the examiner by refusing to answer questions necessary to complete the examination. Accordingly, the examiner did not have the information needed to determine whether the Veteran had PTSD or any other acquired psychiatric disorder. Because VA cannot conduct a VA examination without the cooperation of the Veteran, results from his PTSD examination, which may have demonstrated the existence of a current acquired psychiatric disorder related to service, are unavailable. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (finding the duty to assist is not a one-way street). Therefore the Board finds that VA has fulfilled its duties to notify and assist the Veteran in connection with his claim and the claim may be adjudicated based on the current record. Analysis 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; 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). In order to establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) the 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"- the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For purposes of 3.303(b), where the veteran asserts entitlement to service connection for a chronic condition, but there is insufficient evidence of a diagnosis in service, the veteran can establish service connection by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013), aff'g Walker v. Shinseki, No. 10-2634, 2011 WL 2020827 (Vet. App. May 25, 2011). (emphasis added). For disabilities that are not listed as chronic under 38 C.F.R. § 3.303(b), the only avenue for service connection is by a showing of in-service incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). Service connection may also be granted on a presumptive basis for certain chronic disabilities, such as psychosis, when manifested to a compensable degree of 10 percent or more within one (1) year from the date of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2014). According to 38 C.F.R. § 3.384, a "psychosis" includes the following specific disorders: brief psychotic disorder, delusional disorder, psychotic disorder due to general medical condition, psychotic disorder not otherwise specified (NOS), schizoaffective disorder, schizophrenia, schizophreniform disorder, shared psychotic disorder, and substance-induced psychotic disorder. The Veteran asserts that he was on a civil affairs team during Vietnam service and was involved in combat with the enemy. Service connection for PTSD specifically requires (1) medical evidence establishing a diagnosis of the disability, (2) credible supporting evidence that the claimed in-service stressor occurred, and (3) a link, established by medical evidence, between the current symptomatology and the claimed in-service stressor. See 38 C.F.R. § 3.304(f). See also Cohen v. Brown, 10 Vet. App. 128 (1997). With regard to the second PTSD element as set forth in 38 C.F.R. § 3.304(f), evidence of an in-service stressor, the evidence necessary to establish the occurrence of the claimed stressor actually varies depending on the circumstances of the stressor and the nature of a veteran's service. The DSM-IV provides two requirements as to the sufficiency of a stressor: (1) A person must have been "exposed to a traumatic event" in which "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 self or others," and (2) "the person's response [must have] involved intense fear, helplessness, or horror." DSM-IV at 427-28. These criteria are no longer based solely on usual experience and response, but are individualized (geared to the specific individual's actual experience and response). Hence, under the DSM-IV, the mental illness of PTSD would be treated the same as a physical illness for purposes of VA disability compensation in terms of a predisposition toward development of that condition. Cohen v. Brown, supra. In Zarycki v. Brown, 6 Vet. App. 91 (1993), the Court held that the presence of a recognizable stressor is the essential prerequisite to support the diagnosis of PTSD. 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. See 38 C.F.R. § 3.304(f)(1); see also, 38 U.S.C.A. § 1154(b) (West 2002 & Supp. 2013). Otherwise, the law requires verification of a claimed stressor. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d), (f); Gaines v. West, 11 Vet. App. 353, 357-58 (1998). The ordinary meaning of the phrase "engaged in combat with the enemy," as used in 38 U.S.C.A. § 1154(b), requires that a veteran have participated in events constituting an actual fight or encounter with a military foe, or hostile unit or instrumentality. VAOPGCPREC 12-99. Mere service in a combat zone does not establish that a veteran engaged in combat with the enemy. Id. Service department evidence that a veteran engaged in combat or that a veteran was awarded the Purple Heart Medal, Combat Infantryman Badge, or similar combat citation will be accepted, in the absence of evidence to the contrary, as conclusive evidence of the claimed in-service stressor. Id. The Veteran's DD 214 shows that he served in Vietnam. However, service treatment records show no complaints of, treatment for, or a diagnosis of PTSD or any other psychiatric disorder during service. Although an August 1969 report shows that he had an "anxiety reaction," his January 1970 separation examination revealed normal psychiatric findings and he specifically denied then having, or having had symptoms of any psychiatric disorder. Also, because there is no evidence that he was diagnosed with psychosis within one year of service, service connection for psychosis on a presumptive basis is not for application. Post-service VA treatment reports show that the Veteran did not receive a possible diagnosis of PTSD until October 2010, when he was seen at the VA Medical Center (VAMC) by a licensed clinical social worker (LCSW). She diagnosed him with anxiety, NOS; rule out PTSD; and adjustment disorder with depressed mood. After expressing a desire for PTSD treatment (he expressed being tired of living with isolation, anxiety and paranoia), in November 2010, the Veteran went to the VAMC for a scheduled assessment by a licensed clinical psychologist. When he was told that the evaluation was not a VA examination pertaining to his claim for disability benefits, he answered some questions, but chose to end the interview after only 30 minutes. The clinician noted that she was unable to cover all areas of the evaluation due to this action. Although the Veteran failed to report for a follow-up evaluation in early January 2011, he returned later that month and was administered the Trauma Symptom Inventory (TSI) test, which suggested that he was experiencing difficulties with depression, anxiety and difficulty managing intrusive stimuli from a past traumatic event. He reported a significant amount of distress resulting from his military experiences that led to his increased marijuana consumption, including past legal problems for growing marijuana. The clinician concluded that, given his lengthy use of marijuana, his current medical and financial problems, as well as his disabling vision impairment, it was unclear to what degree his current mental state could be attributed to his military service. During a February 2011 VA PTSD examination, the clinician examined the Veteran, reviewed the results of the January 2011 assessment, and administered additional psychological testing. She concluded, however, that he did not meet the criteria for a diagnosis of PTSD, but rather, diagnosed him with a mood disorder with psychotic features, possibly schizoaffective disorder, as well as cannabis abuse. Although she noted that it was difficult to rule out PTSD at that time because his predominant issue appeared to be a mood disorder that was not being treated, she ultimately concluded he did not have a diagnosis of PTSD. The examiner further opined that the Veteran's mood disorder was less likely than not the result of service. She explained that some of Veteran's difficulty began prior to military service and it was unclear whether those were prodromal symptoms. Although she noted that it was possible, according to the stress diathesis model, that combat may have exacerbated a preexisting disposition to psychotic symptoms, this remained unclear. She also noted that it was possible that his long history of drug abuse may have exacerbated a preexisting disposition to the disorder, noting that the clinical picture was further complicated by symptoms of an antisocial personality disorder. The claims folder shows that, although the Veteran was offered outpatient VA mental health counseling during the pendency of this claim, he reported that he neither wished to undergo therapy, nor take medication. In October 2014, the Veteran returned for his second VA PTSD examination. After noting that she had reviewed the Veteran's complete claims folder, the examiner reported that the Veteran had failed to answer her questions concerning the incident in service in which he had experienced anxiety. He also refused to answer any questions about his relevant legal, behavioral and substance abuse history prior to, during and after service. Instead, he told the examiner that he was "through ... you got all I have to give," and chose to end the evaluation. The clinician noted that, due to the Veteran's refusal to answer her questions, she was unable to determine whether he had a mental health disorder, to include PTSD. The preponderance of the probative evidence is against the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD. As discussed above, the Veteran has repeatedly failed to cooperate with VA in its attempt to assist him in substantiating his claim. Moreover, he does not have a diagnosis of PTSD pursuant to the criteria of the DSM-IV, and the February 2011 VA examiner concluded that his mood disorder with psychotic features was less likely than not related to service. In addition to the medical evidence of record, the Board has also considered the Veteran's personal statements in support of his claim. The law recognizes that laypersons are competent to report what they experience with their own senses. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002. As such, his reports are entitled to some probative weight. However, as a layperson without medical training or experience, the Veteran is not competent to offer an opinion on complex medical issues, such as ascribing his symptoms to a particular diagnosis and, in turn, relating the diagnosis to his service. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, the Board concludes that the probative evidence of record is against the claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD. The "benefit-of-the-doubt" rule enunciated in 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 3.102 is inapplicable, as there is not an approximate balance of evidence for versus against the claim. See generally Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). ORDER Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is denied. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs