Citation Nr: 1536987 Decision Date: 08/28/15 Archive Date: 09/04/15 DOCKET NO. 13-04 263 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder and anxiety. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Joseph R. Keselyak, Counsel INTRODUCTION The Veteran had active service from June 1968 to February 1970 and May 1970 to January 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal of an October 2012 by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In March 2015 the matter was last before the Board and remanded for further development. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). FINDINGS OF FACT It has not been shown by competent and probative evidence that the Veteran has a current psychiatric disability or that he had a psychiatric disability during the course of the present claim and appeal. CONCLUSION OF LAW Service connection for a psychiatric disability is not established. 38 U.S.C.A. §§ 1110, 1110, 1112, 1137, 1153, 5103, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.301, 3.303, 3.304, 3.307, 3.309, 3.384 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. In the notice, VA will inform the claimant which information and evidence, if any, that the claimant is to provide to VA and which information and evidence, if any, that VA will attempt to obtain on behalf of the claimant. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159 (2008); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Notice should also address the rating criteria and effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO provided the appellant pre-adjudication notice by a letter dated in April 2012. VA has obtained the Veteran's service treatment records, assisted the Veteran in obtaining evidence, afforded the Veteran physical examinations, and obtained medical opinions as to the nature, etiology, and severity of his disability. All known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file. The United States Court of Appeals for Veterans Claims (hereinafter 'the Court ') has held that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion 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 substantial review of the record and medical findings and consider the Veteran's complaints, symptoms and history. Accordingly, VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue addressed in this decision has been met. 38 C.F.R. § 3.159(c)(4). VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. Laws and Regulations 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(a) (2015). Service connection may be granted for a disease diagnosed after service discharge when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where a veteran served continuously for 90 days or more during a period of war or during peacetime service after December 31, 1946, service connection may also be allowed on a presumptive basis for psychosis and if the disability becomes manifest to a compensable degree within one year after the veteran's separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. The term "psychosis" means any of the following disorders listed in Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision, of the American Psychiatric Association (DSM-IV-TR): (a) Brief Psychotic Disorder; (b) Delusional Disorder; (c) Psychotic Disorder Due to General Medical Condition; (d) Psychotic Disorder Not Otherwise Specified; (e) Schizoaffective Disorder; (f) Schizophrenia; (g) Schizophreniform Disorder; (h) Shared Psychotic Disorder; and (i) Substance-Induced Psychotic Disorder. 38 C.F.R. § 3.384. The Board notes that effective August 4, 2014, VA amended the portion of its Schedule for Rating Disabilities dealing with mental disorders and its adjudication regulations to remove outdated references to the DSM -IV and replaced them with references to the recently updated Fifth Edition (DSM-5). See 79 Fed. Reg. 149, 45094 (August 4, 2014). The provisions of the interim final rule apply to all applications for benefits that are received by VA or that were pending before the AOJ on or after August 4, 2014. VA adopted as final, without change, the interim final rule and clarified that the provisions of this interim final rule do not apply to claims that have been certified for appeal to the Board or are pending before the Board as of August 4, 2014, even if such claims are subsequently remanded to the AOJ. See 80 Fed. Reg. 53, 14308 (March 19, 2015) (emphasis added). The RO certified the Veteran's appeal to the Board in March 2013 and as such, this claim is governed by DSM-IV. Therefore, while the Board acknowledges that the DSM-5 represents the most up-to-date clinical diagnostic guidelines, due process requires that the Veteran's claim be considered using the DSM-IV criteria. To establish a right to compensation for a present disability, a Veteran 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" - the so-called 'nexus' requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Facts and Analysis The Veteran seeks service connection for psychiatric disability, to include PTSD and anxiety. His service records do not document any psychiatric disability or complaints. VA records from the VA Hospital, Dallas, Texas, dated in January 1973 document complaints of feeling depressed and nervous, with a history of injury to the right hand. All lab, tests, physical and neurological findings were negative. The Veteran was treated for anxiety neurosis and depressive neurosis. Records associated with treatment document impressions of poor insight and judgment, immaturity and inadequate personality. They also document significant stress related to the Veteran's loss of job due to injury to his right hand shortly prior to the hospital admission. A May 1993 VA general note documents that the Veteran was then seeking treatment for depression, with history of depression for about 3 months since separating from his wife. Depression related to marital separation, no hard signs of depression and no acute distress were assessed. A May 1994 VA general note reflects an evaluation for depression. At that time, the Veteran reported that in 1973 he had been committed by his parents fur using drugs, depression and "generally living a disorganized life." He had not had any mental health treatment since. Dysthymia with situational depressed/anxious mood was assessed. Subsequent VA records document negative depression screens, for example in December 2001 and May 2005. A March 2006 VA record documents a chief complaint of nervous spells over the past 4 to 5 months. The Veteran was referred to the mental health clinic for evaluation of "anxiety" and "depression." Examination resulted in an assessment of anxiety disorder, not otherwise specified, and rule out panic disorder. Panic disorder, in remission, was assessed in June 2006. A depression screen was negative in July 2011. The Veteran filed his claim in September 2011 and in September 2012, he was provided a VA examination, with emphasis on PTSD. Examination resulted in a specific finding that the Veteran did not meet the diagnostic criteria for PTSD under DSM-IV criteria, and that he did not have a mental disorder otherwise conforming with any DSM-IV criteria. The examiner explained that although a stressor may be conceded, the Veteran did not meet the diagnostic criteria. He also explained that most of the time the Veteran was in a pretty good mood, and that the mild anxiety symptoms that the Veteran was treated for in 1973 had largely remitted, and that PTSD was not then assessed. Of record is a November 2012 VA mental health treatment record, reflecting that the Veteran presented as a walk-in patient, "to get a diagnosis of PTSD" as his service connection claim had been denied. He then reported a history of anxiety attacks and getting angry easily. He related a history of anxiety disorder, but related that he had not been on medication in a long time. He denied suicidal/homicidal thought and hallucinations. He related that his overall mood stayed good, although he sometimes felt anxious and irritable. Mental status examination showed that the Veteran was cooperative, had fair eye contact, normal speech, a good mood, a euthymic affect, fair concentration and alert activity. He was oriented times three, and had intact long and short term memory. Thought process was organized and goal-directed. Thought content was normal, with fair insight and judgment. Anxiety disorder, not otherwise specified was apparently assessed. The Veteran was started on Zoloft. A January 2013 VA mental health outpatient note documents that the Veteran presented at that time for follow-up of the November 2012 mental health visit and was "trying to get programmed in for [PTSD]." It was noted that the Veteran had been prescribed low dose sertraline, but had not refilled his prescription. Mental status examination was unremarkable, and a diagnosis of anxiety disorder, not otherwise specified, was assessed. An April 2013 VA mental health outpatient note documents a diagnosis of anxiety disorder, NOS. The Veteran related that he was taking his sertraline. He reported that he had last had a nervous spell some time ago, and reported feeling depressed due to his wife's illness. In January 2014, the Veteran was afforded another VA examination. The examiner was asked to address whether the anxiety disorder, or any other disorder, was related to service. The examiner rendered a negative etiological opinion, concluding that the Veteran did not have any mental disorder, to include PTSD, anxiety or any other diagnosis. The examiner outlined the Veteran's VA mental health treatment, noting that a diagnosis of anxiety disorder, NOS, had been made based solely on the Veteran's provided history. The examiner also outlined several contradictions made by the Veteran, for instance noting that he had threatened to blow up the city center on one occasion, later explaining that he "blamed it on a PTSD flashback because it sounded good." The examiner also noted that the Veteran sought mental health treatment for the purpose of being "programmed" into the PTSD system, i.e. for the purpose of obtaining benefits. The examiner particularly ruled out any diagnosis under either DSM-IV or DSM-5. In June 2015, the Board obtained another medical opinion from a VA Clinical Psychologist, particularly to address the aforementioned 1973 records, which were not available to the VA examiner in January 2014. The examiner thoroughly outlined the Veteran's complete history, and ultimately concluded that the Veteran had not met the criteria for any mental health diagnoses. She noted that the Veteran reported "panic attacks," but found that his description did not constitute clinical panic attacks, but rather normal anxiety. She found it likely that the Veteran was misperceiving or misunderstanding the difference between nervousness and autonomic arousal that was a normal part of living, versus clinical anxiety. She found that the Veteran's previous diagnosis of anxiety disorder, NOS, was not valid, as it was based upon the Veteran's self-report of diagnosis. In terms of the 1973 treatment records relating to anxiety and depression, she found no connection to service and these assessments, noting that the diagnoses were made in the context of tension in the parent-child relationship, extensive drug use and poor judgment/insight/coping capacity, likely linked with intellectual deficits. The Veteran contends that he has a psychiatric disability that is the result of his active service. The Board, however, finds that the preponderance of the competent evidence of record is against the claim because medical evidence preponderates against showing that the Veteran has a current psychiatric disability, or that he has had one during the pendency of the current claim and appeal. In order to establish a claim for service connection of a disability, there must be, inter alia, the existence of a present disability. Shedden, 381 F. 3d at 1167. The presence of a current disability is satisfied if the claimed disability is present during the course of the claim, as well. See McLain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that the requirement that a claimant have a current disability before service connection may be awarded for that disability is also satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if no disability is present at the time of the claim's adjudication). In the present case, the Board does not conclude that a the evidence is at least to equipoise that the Veteran has a current psychiatric disability, or that he has had one during the course of the present claim. The Board acknowledges that VA records dated contemporaneously to the filing of the claim and shortly thereafter suggest a diagnosis of a psychiatric disability, i.e. an anxiety disorder. However, repeated VA examinations and opinions competently show that the apparent diagnosis was based upon a history of diagnosis provided by the Veteran, rather than a clinical diagnosis. The Board finds that the VA medical opinions are the most probative evidence of record, and when considered with the remaining evidence of record, clearly show beyond a preponderance that the Veteran has not had a psychiatric disability during the course of the present claim. The examinations take into consideration the Veteran's full medical history, lay reports, and complaints. Thus, in the absence of a present psychiatric disability, the claim cannot be substantiated. Pertinent to a claim for service connection, such a determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). No psychiatric disability was present during the course of the present claim. McClain, supra. Thus, the claim must be denied. Gilbert, supra. In closing, the Board acknowledges that the Veteran believes he has a psychiatric disability, and that he has reported symptoms of anxiety and depression. He is certainly competent to report his observations of mood, etc.; however, he is not competent to assess a psychiatric disability, as this is clearly beyond the purview of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). ORDER Entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder and anxiety is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs