Citation Nr: 1522285 Decision Date: 05/26/15 Archive Date: 06/11/15 DOCKET NO. 06-05 920 ) 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 Veteran represented by: Colin E. Kemmerly, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. C. Wilson, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1968 to September 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. Jurisdiction has since been transferred to the RO in Montgomery, Alabama. The Veteran testified at a hearing before a Decision Review Officer (DRO) at the RO in May 2005, and testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ) in March 2009. By way of background, the Board initially denied the Veteran's claim for service connection in a decision issued in July 2009. Thereafter, the Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). The Court issued a Memorandum Decision in July 2011, vacating the Board's decision and returning the Veteran's claim to the Board. In light of the Court's July 2011 decision, the Board remanded the claim for further development in April 2012. Pursuant to the April 2012 remand directives, the RO obtained outstanding treatment records, provided adequate examinations to address the etiology of any diagnosed acquired psychiatric disorders, and readjudicated the Veteran's claim. As there has been substantial compliance with the remand directives, the Board finds that further action is not necessary. Stegall v. West, 11 Vet. App. 268 (1998). During the course of the present appeal, the Veteran was represented by private attorney, Colin E. Kemmerly. A VA Form 21-22a (Appointment of Individual as Claimant's Representative) was received in July 2009 appointing the attorney as the Veteran's representative and reflecting the parties' agreement that the attorney act as the Veteran's representative for the present appeal. In October 2014, the attorney informed VA that he has withdrawn representation of the Veteran as to the present appeal, but the record fails to show that representation has been withdrawn in accordance with 38 C.F.R. § 20.608(b). Following certification of an appeal to the Board, a representative may not withdraw representation without good cause shown on motion and a signed statement certifying that a copy of the motion was sent by first-class mail, postage prepaid, to the appellant, setting forth the address to which the copy was mailed. 38 C.F.R. § 20.608(b)(2). The Board acknowledges that 38 C.F.R. § 20.608 also indicates that the motion should be filed with the Office of the Senior Deputy Vice Chairman. To date, no such motion has been received by VA. Accordingly, no change in representation is recognized. FINDINGS OF FACT 1. The Veteran does not have a diagnosis of PTSD that was diagnosed during service, is related to combat service, is related to his fear of hostile military or terrorist activity, is related to stressors associated with a prisoner-of-war experience, or is related to in-service personal assault. 2. The Veteran does not have an acquired psychiatric disorder that was incurred in or is otherwise etiologically related to 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, 1154(a), 5107(b) (West 2014); 38 C.F.R §§ 3.102, 3.303, 3.304(f) (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). Proper notice from VA must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided notice in December 2003. With regard to VA's duty to assist in the development of a claim, VA has associated with the Veteran's claims file his STRs, VA treatment records, and non-VA treatment records. 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c)(3). The record indicates that the Veteran is in receipt of benefits from the Social Security Administration (SSA) and review of the record reveals that SSA records have not been associated with the claims file. However, in light of the Veteran's report in his November 2003 claim for service connection that he only receives treatment at VA facilities and because the Veteran's VA treatment records have been associated with the claims file, the Board finds that it is not necessary to obtain his SSA records. Coincident to VA's duty to assist the Veteran in substantiating his claim, VA also provided examinations and obtained medical opinions in May 2004, June 2005, May 2012, and July 2014. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Board finds that the most recent examinations of record are adequate as the examiner who conducted the May 2012 and July 2014 examinations reviewed the Veteran's relevant medical history and offered clear conclusions regarding the etiology of the claimed condition with supporting data as well as reasoned medical explanations. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). As previously acknowledged, the Veteran was afforded hearings before a DRO and the undersigned VLJ, during which he presented oral argument in support of his claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims held that 38 C.F.R. § 3.103(c)(2) requires that the DRO or VLJ who chairs a hearing fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. During the hearings, the DRO and VLJ enumerated the issues on appeal and solicited information regarding the elements that were lacking to substantiate the Veteran's claim for benefits. In addition, the DRO and VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) nor has identified any prejudice in the conduct of the hearings. By contrast, the hearings focused on the elements necessary to substantiate the claim and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for benefits. As such, the Board finds that, consistent with Bryant, the DRO and VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and the Board can adjudicate the claims based on the current record. The Board finds that no further notice or assistance to the Veteran is required for a fair adjudication of his claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). All necessary development has been accomplished and appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Merits of the Claim Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303(a) (2014). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Service connection for PTSD in particular 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) (2014). If a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances 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)(3). For VA purposes, "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. Id. As a preliminary matter, the Board finds that the record is negative for evidence that the Veteran was diagnosed with PTSD during service, served in combat, was a prisoner-of-war, or has asserted that he was a victim of in-service personal assault. Thus, 38 C.F.R. § 3.304(f)(1)-(2), (4)-(5) are not for application. During his March 2009 Board hearing, the Veteran testified that he was hospitalized to treat injuries from a motor vehicle accident that occurred soon before he was scheduled to deploy for service in the Republic of Vietnam (Vietnam). He testified that during his hospitalization, he witnessed many seriously wounded service members returning from Vietnam and that he was disturbed by this experience, recognizing that prior to his accident he was scheduled to serve in Vietnam. The Veteran contends that this experience was the stressor that caused him to develop PTSD. The Veteran further testified that he first sought psychiatric care in the late 1980s and early 1990s, and that he was first diagnosed with PTSD in the late 1990s. Additionally, at the close of this hearing, the Veteran also referenced a postservice stressor, namely an incident during his Merchant Marine service when he narrowly missed boarding a ship that subsequently sank with his father on board. The Veteran's military personnel records and STRs fail to show that the Veteran served in Vietnam. In addition, a December 2011 Personnel Information Exchange System (PIES) request response indicates that the Veteran did not serve in Vietnam. The Veteran's in-service treatment records, to include his STRs and extensive records of his in-service inpatient treatment at a naval hospital for injuries sustained during a motor vehicle accident, are negative for any reference to a psychiatric disorder. In addition, the Veteran's general health was evaluated using a "PULHES" profile upon his separation from service in September 1970. "The 'P' stands for 'physical capacity or stamina'; the 'U' stands for 'upper extremities'; the 'L' stands for 'lower extremities'; the 'H' stands for 'hearing and ear'; the 'E' stands for 'eyes'; and the 'S' stands for 'psychiatric.' Para. 9-3(b)(1)-(6), Army Regulation (AR) 40-501, Change 35 (Feb. 9, 1987)." Odiorne v. Principi, 3 Vet. App. 456, 457 (1992). The "PULHES" profile reflects the overall physical and psychiatric condition of the examinee on a scale of 1 (high level of fitness) to 4 (a medical condition or physical defect that is below the level of medical fitness for retention in the military service). See generally id. The number "1" appears in every category in the Veteran's September 1970 separation examination report, which also indicates that the Veteran's psychiatric evaluation was normal. The Veteran's spouse, who married the Veteran in 1975, reported in a November 2014 statement that the Veteran has experienced nightmares related to service, frequently looks over his shoulder, has a hard time relating to others, and isolates himself from family. The Veteran's postservice treatment records document a negative mood/depression screening test in November 2000. The record first reflects psychiatric treatment in October 2003, at which time he was diagnosed with depression not otherwise specified (NOS) and depression secondary to a medical condition causing pain. In addition, the Veteran underwent a VA psychiatric examination in May 2004, at which time he reported that the October 2003 treatment was the first time that he sought mental health treatment. During the May 2004 examination, the examining clinician reported that there was no indication of PTSD and diagnosed the Veteran with a depressive disorder NOS. The clinician who examined the Veteran in May 2004 reexamined the Veteran in June 2005, at which time she noted that the Veteran was diagnosed with PTSD by VA clinicians since his previous examination in May 2004. The examiner noted that the Veteran's primary diagnosis in June 2005 was depression and concluded that the Veteran "minimally met" the criteria for a diagnosis of PTSD based on his reported in-service stressor, but found it "rather curious" that significant symptoms of PTSD were not noted in May 2004. An August 2007 VA psychiatry consultation documents a provisional diagnosis of mild PTSD and diagnoses of depressive disorder NOS and psychosis NOS. The record indicates that a personality disorder was to be ruled out. The Board finds it highly probative that the diagnosis of PTSD was "provisional," which is to say that the diagnosis was temporary. See Dorland's Illustrated Medical Dictionary 1539 (32nd ed. 2012) (defining "provisional" as "formed or performed for temporary purposes; temporary"); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007) (providing that "the Board retains discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence"). In addition, the Board finds it highly probative that many VA treatment records that note PTSD do not explicitly establish a link between the Veteran's symptoms and his reported in-service stressor, which is needed in order to establish service connection for PTSD. These records also fail to establish that the Veteran's other psychiatric conditions are attributable to service. Thus, the Board finds that these reports alone are not sufficient to support a grant of service connection for an acquired psychiatric disorder, to include PTSD. A VA treatment record dated May 2011 notes a diagnosis of "PTSD (MVA in boot camp)," but the Board finds that the Veteran's in-service motor vehicle accident itself does not qualify as a stressor related to the Veteran's fear of hostile military or terrorist activity, and the Veteran has not asserted the same. Additionally, although a September 2011 VA psychological assessment documents that the Veteran continues to endorse symptoms of PTSD due to his military service, the Board notes that the clinician incorrectly noted that the presenting problem was PTSD regarding a Vietnam era combat veteran, which is incorrect. Thus, the Board finds that these diagnoses are not adequate to support a diagnosis of PTSD related to the Veteran's period of active service. In May 2012, VA provided another examination in an attempt to obtain a medical opinion regarding whether the Veteran has PTSD that is related to his period of active service, as required in order to warrant service connection. The examining clinical psychologist concluded that the Veteran does not have a diagnosis of PTSD. The examiner endorsed that the Veteran's symptoms do not meet the DSM-IV (Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition) diagnostic criteria for PTSD and reported that the Veteran has other Axis I and Axis II diagnoses-mood disorder NOS and personality disorder NOS with schizoid and antisocial features. The May 2012 examiner reported that the Veteran's primary stressor-that he was affected by the presence of wounded Vietnam servicemembers while receiving treatment during service-is not adequate to support a diagnosis of PTSD and is not related to a fear of hostile military or terrorist activity. The examiner explained that the Veteran was never in a war zone, his life was never threatened by hostile military or terrorist activity, the hospital where he saw individuals being treated was not an acute care facility, and he did not treat the individuals who were injured. The examiner deduced that the Veteran had a fear of what could happen to him, which the Board finds does not show that he "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 . . . ." (Emphasis added.) 38 C.F.R. § 3.304(f)(3). In addition, the examiner opined that the Veteran's mood disorder is closely linked to his personality disorder, and it would be mere speculation to provide an opinion as to whether his mood disorder has any link to his in-service stressor. The examining psychologist who evaluated the Veteran in May 2012 also evaluated the Veteran in July 2014 and provided a similar opinion regarding whether the Veteran has a psychiatric disorder due to service. In July 2014, the examiner reported that the Veteran does not have a diagnosis of PTSD that conforms to DSM-V (Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition) criteria. The examiner documented the following stressors: (1) in-service motor vehicle accident; (2) seeing soldiers in the hospital after they were injured in Vietnam; and (3) hearing of other Marines who were injured or killed in Vietnam. The examiner noted that these stressors are not related to the Veteran's fear of hostile military or terrorist activity and are not related to personal assault. Additionally, the examiner reported that the second and third reported stressors are not adequate to support a PTSD diagnosis. Again, the examiner opined that witnessing wounded service members returning from Vietnam for treatment is not sufficient to trigger PTSD based on both DSM-IV and DSM-V criteria. The Veteran was never in a war-zone, his life was never threatened by hostile military or terrorist activity, and he observed soldiers being treated at an acute care facility after they were stabilized and treated prior to being transferred back to the United States. In addition, although the Veteran meets the criteria for an unspecified personality disorder and unspecified depressive disorder, the examiner found that it is less likely as not that any currently diagnosed psychiatric disorder had its onset during or was otherwise incurred during service. The examiner supported this opinion by explaining that the record is silent for any mental health complaints or treatment until 2003, which is over thirty years after the Veteran separated from service, and that the Veteran had a long period of intervening substance abuse/dependence. Overall, the competent and adequate evidence of record shows that the stated stressors are insufficient to support a diagnosis of PTSD due to service. Generally, lay evidence alone is not competent to diagnose PTSD and entitlement to service connection for this condition cannot arise until the pertinent regulatory requirements are satisfied, including the existence of medical evidence diagnosing the condition. See 38 C.F.R. §§ 3.304(f), 4.125(a) (2014); see also Young v. McDonald, 766 F.3d 1348 (2014). The Board notes that the Veteran is not competent to provide evidence pertaining to complex medical issues such as the diagnosis and etiology of psychiatric disorders, as such a question is not answerable by personal observation alone or by the application of knowledge within the realm of a layperson. Jandreau, 492 F.3d at n.4; Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). Thus, to the extent that the Veteran has provided a credible report of an in-service stressor, the Board finds that service connection for PTSD is not warranted. Similarly, the Board finds that the competent evidence of record fails to show that any other psychiatric disorders may be attributed to service. Although the Veteran's representative asserted in a February 2009 Form 646 that VA may not deny the Veteran's claim for the reason that service records do not corroborate his exposure to a stressor and that all that is required is that the available service records must not contradict the Veteran's lay testimony concerning his non-combat related stressors, the Board notes that 38 C.F.R. § 3.304(f)(3) makes clear that finds that the Veteran's lay testimony alone may establish the occurrence of the claimed stressor if a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the veteran's symptoms are related to the claimed stressor. Such evidence is not of record. In light of the foregoing, the Board finds that the preponderance of the evidence is against granting service connection for an acquired psychiatric disorder, to include PTSD. There is no reasonable doubt to be resolved in this case. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for an acquired psychiatric disorder, to include PTSD, is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs