Citation Nr: 1529045 Decision Date: 07/07/15 Archive Date: 07/15/15 DOCKET NO. 13-21 842A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUE Entitlement to service connection for acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and a sleep disorder. REPRESENTATION Veteran represented by: Hawaii Office of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had 20 years and 10 months of active duty service, to include service from February 1964 to October 1966. He also served in Vietnam. This matter comes before the Board of Veteran's Appeals (Board) on appeal from a September 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii. In September 2014, the Veteran testified before the undersigned Veterans Law Judge at a hearing at the RO. A hearing transcript has been associated with the record. The Board remanded the instant matter in November 2014. As will be discussed herein, the Board finds that the agency of original jurisdiction (AOJ) has substantially complied with the remand orders with regard to the claim for service connection and no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Relevant to the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder, such was originally adjudicated by the AOJ as entitlement to service connection for PTSD. However, in Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the United States Court of Appeals for Veterans Claims (Court) held that, in determining the scope of a claim, the Board must consider the claimant's description of the claim; symptoms described; and the information submitted or developed in support of the claim. In light of the Court's decision in Clemons, the Board has recharacterized the issue on appeal as entitlement to service connection for an acquired psychiatric disorder, to include PTSD and a sleep disorder. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. The Board notes that, in addition to the VBMS file, there is a separate electronic (Virtual VA) file associated with the Veteran's claim. A review of the Virtual VA file reveals that, with the exception of the September 2014 hearing transcript, the documents are duplicative of those contained in the VBMS paperless claims processing system. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim on appeal have been accomplished. 2. The probative medical evidence of record fails to show a diagnosis of PTSD or any other psychiatric disorder. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, to include PTSD are not met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 4.125 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). Proper VCAA notice 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; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits. In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, a January 2011 letter, sent prior to the September 2011 rating decision, advised the Veteran of the evidence and information necessary to substantiate his service connection claim as well as his and VA's respective responsibilities in obtaining such evidence and information. Additionally, such letter advised him of the information and evidence necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. Relevant to the duty to assist, the Veteran's service treatment and personnel records as well as post-service VA and private treatment have been obtained and considered. In addition, the Veteran has not identified any additional, outstanding records that have not been requested or obtained. In this regard, the Veteran was asked to identify the VA and non-VA providers who had treated him for his claimed PTSD and complete appropriate authorization forms in a February 2015 letter. No response was received. The Board emphasizes that "the duty to assist is not always a one-way street. If a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Therefore, the Board finds that VA has satisfied its duty to assist in this regard. The Veteran was afforded VA examinations in February 2011 and March 2015 and as well as addendum opinion was obtained in March 2015 in order to adjudicate his claim for service connection. In this regard, the Board notes that the VA examiners offered etiological opinions as to the claimed disorder and based their conclusions on a review of the record, to include interviews with the Veteran and a full examination. Moreover, the opinions offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). As such, the Board finds that the opinions proffered by the VA examiners are sufficient to assist VA in deciding the claim for service connection and no further examination and/or opinion is necessary. Additionally, in September 2014, the Veteran was provided an opportunity to set forth his contentions during the hearing before the undersigned Veterans Law Judge. In Bryant v. Shinseki, the Court held that 38 C.F.R. § 3.103(c)(2) requires that the RO Decision Review Officer or Veterans Law Judge who chairs a hearing to 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. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, during the September 2014 hearing, the undersigned Veterans Law Judge enumerated the issue on appeal, which included service connection for PTSD. Also, information was solicited regarding the Veteran's in-service experiences he alleges resulted in his PTSD, the type and onset of symptoms, the nature of his current disorder, and his contention that his military service caused his PTSD. Therefore, not only was the issue "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully explained. See Bryant, 23 Vet. App. at 497. Furthermore, additional development was undertaken subsequent to the hearing in order to ensure that all necessary evidence was of record, which included affording the Veteran the opportunity to identify any additional records, and obtaining an examination and obtained an etiology opinion. As such, the Board finds that, consistent with Bryant, the undersigned Veterans Law Judge complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board may proceed to adjudicate the claim based on the current record. Moreover, based on the foregoing, the Board determines that the AOJ has substantially complied with the November 2014 remand directives by requesting that the Veteran identify any VA or non-VA provider that had treated him for his claimed disability and obtaining a March 2015 VA etiology opinion and an addendum opinion and, as such, that no further action is necessary in this regard. See D'Aries, supra. Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); 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). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Service Connection Service connection may be granted for a 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(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, to include psychosis, to a degree of 10 percent within one year, from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In some cases, service connection may also be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307) and (ii) subsequent manifestations of the same chronic disease, or (b) if the fact of chronicity in service in not adequately supported, by evidence of continuity of symptomatology. However, the Federal Circuit has held that the provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As the Veteran does not have a diagnosis of a chronic disease per VA regulations, presumptive service connection, to include on the basis of continuity of symptomatology, is not warranted. Establishing service connection for PTSD specifically 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 actually occurred. 38 C.F.R. § 3.304(f). Section 4.125(a) requires the diagnosis to conform to the fourth edition of the American Psychiatric Associations' Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), or, for claims received by or pending before the AOJ on or after August 4, 2014, the Fifth Edition (DSM-5). See also 38 C.F.R. § 4.130; 79 Fed. Reg. 45093 (Aug. 4, 2014). The Board notes that the adequate VA examination reports, as discussed below, show that the Veteran does not have a current mental health diagnosis under either version of the DSM. Therefore, the regulation changes regarding the release of the DSM-5 do not affect the outcome of the claim in this case, and further discussion of applicability of the revised regulations is not necessary. VA amended its regulations governing entitlement to service connection for PTSD, effective July 13, 2010. The new version of 38 CFR § 3.304(f), adds a paragraph to the regulation under 3.304(f)(3), and moves 3.304(f)(3) and (4) to 3.304(f)(4) and (5). The amendment to the regulation relaxes the evidentiary standard required for establishing an in-service stressor to support a diagnosis of PTSD. The amended regulation potentially applies to the Veteran's claim on appeal. The revised regulation states that: 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 posttraumatic stress disorder 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. For purposes of this paragraph, "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. See 75 Fed. Reg. 39843-52 (July 13, 2010) (effective date corrected at 75 Fed. Reg. 41092 (July 15, 2010)); 38 C.F.R. § 3.304(f)(3). The Board must consider that 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that he suffers from PTSD as a result of his service in Vietnam. During his September 2014 hearing, the Veteran testified regarding his in-service combat experiences, including serving as a forward observer in Vietnam. Service treatment records were negative for complaints, treatments or findings of any psychiatric disorder. An August 1966 service discharge examination found no relevant abnormalities. In an accompanying Report of Medical History, the Veteran denied nervous trouble of any sort as well as depression or excessive worry. Post-service treatment records contain a September 1994 private treatment note in which the Veteran denied insomnia, depression or past psychiatric treatment. A February 2012 private treatment note reflects a diagnosis PTSD. A December 2010 Vet Center treatment summary indicates that the Veteran had been treated from June 1984 to December 1984 for problems relating to his martial/relationship, "interpersonal," "legal," anxiety/fear and alcohol/drugs. A February 2011 VA examination report reflects the Veteran's reports of multiple traumatic incidents while serving in Vietnam. Following a physical examination, a diagnosis of sleep disorder NOS was made. The examiner further noted that there was no diagnosis PTSD. An April 2013 VA Disability Benefits Questionnaire (DBQ) report reflects the Veteran's reports that he did not engage in psychiatric treatment during service, that he does not take psychiatric medication and that he is not engaged in psychiatric care. Following a physical examination and a review of the Veteran's claims file, the examiner found that the Veteran did not have a diagnosis that conformed to the DSM-IV criteria and that the Veteran's symptoms did not meet the diagnostic criteria for PTSD under the DSM-IV criteria. In a March 2015 VA DBQ report, the examiner found that the Veteran's symptoms did not meet the diagnostic criteria for PTSD under the DSM-5 criteria and that he did not have any other mental disorder that confirmed with the DSM-5 criteria. The examiner reasoned that there were insufficient negative alternations in mood in Criteria D, insufficient marked alterations in arousal in Criteria E and insufficient reactivity or clinically significant distress or impairment in social, occupational or life functioning in Criteria G. Moreover, the examiner found that the Veteran does not currently meet the DSM-IV criteria for PTSD due to insufficient avoidance, insufficient increased arousal symptoms and insufficient clinically significant distress or impairment in social, occupational or life functioning. The examiner noted that a wide range of clinical literature over the years showed that the great majority of persons exposed to Criteria A stressors, including combat veterans, do not develop full or chronic PTSD symptoms and that a more typical pattern was for immediate symptoms that resolved to baseline or near baseline function over a relatively short period of time. The examiner noted that the Veteran fit this pattern and fell in the majority of those that do not have PTSD despite exposure to Criteria A stressor as he appeared to have adapted well with minimal impairment in functioning and did not reach clinical criteria for diagnosis. Further, the examiner noted that this finding did not minimize or dismiss the trauma the Veteran suffered in service to our country and this sacrifice should be honored and appreciated but that he appeared to have the resiliency, coping skills and strength to recover from experienced stressors and to have not developed full or chronic PTSD. In a March 2015 VA addendum opinion, the March 2015 examiner noted that a requirement for a mental health disorder to be diagnosed is a clinical impairment in occupational and social functioning. The Veteran had reported that he worked consistently for over 15 years following discharge from service, that he had a second job for 17 years, that he denied impairment in functioning, that he had reported having good relationships and friendships and that he had engaged in different social and leisure activities in his prior VA examinations. The examiner also noted that the Veteran also had reported that he had not sought out mental health treatment until many years after service until undergoing several sessions in 2012 with a private psychologist. The examiner further reasoned that the Veteran showed a normal level of functioning in a range of areas and as such, does not meet the DSM-5 or DSM-IV diagnostic criteria for a mental health disorder. Finally, the examiner noted that the examinations in 2013 and 2015 were consistent with each other by indicating a lack of symptoms significant enough to diagnose a mental health disorder. Considering the claim for service connection in light of the above, the Board finds that the competent, probative evidence establishes that the Veteran does not meet the diagnostic criteria for PTSD or other psychiatric disorder, and that, therefore, the claim must be denied. The above-cited evidence reflects that the record contains conflicting medical evidence on the question of whether the Veteran actually meets the diagnostic criteria for PTSD or other psychiatric disorder. It is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). When reviewing such medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). However, the Board may not reject medical opinions based on its own medical judgment. See also Obert v. Brown, 5 Vet. App. 30 (1993); Colvin v. Derwinski, 1 Vet. App. 171 (1991). In assessing medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). A medical opinion may not be discounted solely because the examiner did not review the claims file. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The only evidence of record reflecting a diagnosis of PTSD is the February 2012 private treatment note while a September 2011 VA examiner diagnosed sleep disorder NOS. However, the Veteran's stressor was not detailed by the private psychologist. Moreover, neither the private psychologist nor the VA examiner provided any rationale to support a diagnosis of PTSD and/or a sleep disorder, and did not discuss the DSM-IV or DSM-5 criteria. Accordingly, the Board is affording the February 2012 private treatment note and/or September 2011 VA examination report little probative value on the question of whether the Veteran actually meets the diagnostic criteria for a diagnosis of PTSD or for any other psychiatric disorder. By contrast, the Board accepts the April 2013 and March 2015 VA examiners' opinions that the Veteran does not meet the criteria for a diagnosis of PTSD or for any other mental health disorder as highly probative medical evidence on this point. The Board notes that the examiners rendered these opinions after thoroughly reviewing the claims file and medical records, and examining the Veteran. The examiners noted the pertinent history, elicited and described the Veteran's symptoms in detail, described the specific diagnostic criteria set forth in DSM-IV and/or DSM-5, and provided a reasoned analysis of the case. See Hernandez-Toyens, 11 Vet. App. at 383; Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994) (the probative value of a physician's opinion depends in part on the reasoning employed by the physician and whether or not (or the extent to which) he reviewed prior clinical records and other evidence). The Board finds this opinion highly probative. Thus, the most persuasive, competent opinion on the question of current diagnosis of PTSD and/or any other psychiatric disorder weighs against the claim. Thus, without persuasive competent evidence of current diagnosis of PTSD, there is no basis upon which to award service connection. The Board emphasizes that Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C.A. §§ 1110, 1131. See also McClain, supra; Romanowsky, supra. Accordingly, where, as here, competent medical evidence indicates that the Veteran does not have the disability for which service connection is sought, there can be no valid claim for service connection for the disability. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer, 3 Vet. App. at 225. As for the lay assertions of record, the Board notes that the Veteran is certainly competent to report his own symptoms or matters within his personal knowledge Jandreau, supra; Buchanan, supra. In addition, laypersons may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (Board's categorical statement that 'a valid medical opinion' was required to establish nexus, and that a layperson was 'not competent' to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). However, the Veteran and his representative are not shown to be other than a layperson without appropriate medical training and expertise to competently a psychiatric disability, to include PTSD. Therefore, their lay assertions in this regard have no probative value. See, e.g., Bostain, supra. Without persuasive competent medical evidence of a current psychiatric diagnosis, there is, regretfully, no basis upon which to award service connection. For all the foregoing reasons, the Board finds that the claim for service connection for an acquired psychiatric disorder, to include PTSD, must be denied. In reaching the conclusion to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53- 56 (1990). ORDER Service connection for an acquired psychiatric disorder, to include PTSD, is denied. ____________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs