Citation Nr: 1552356 Decision Date: 12/15/15 Archive Date: 12/23/15 DOCKET NO. 14-09 596 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for an acquired psychiatric disability, other than PTSD, to include depressive disorder, not otherwise specified (NOS). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R.M.K., Counsel INTRODUCTION The Veteran served on active duty from May 1966 to August 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal of a February 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, that denied entitlement to service connection for PTSD. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Court found that an appellant's claim for service connection for PTSD should have been construed more broadly by VA as a claim for service connection for any mental disability. The Court noted that the claimant was not competent to diagnose a particular psychiatric disability, such as PTSD, but that he was competent to describe his mental symptoms. Id. at 4-5, citing Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992) and Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Court also noted that the evidence submitted in support of the claim showed that the appellant had been diagnosed with psychiatric disabilities other than PTSD and that these disabilities arose "from the same symptoms for which he was seeking benefits." Id. at 9. The Court held that, in construing a claim, the Board must consider any disability "that may reasonably be encompassed by several factors including: the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim." Id. at 5. In accordance with this decision, the Board has recharacterized the issues on appeal as shown on the title page. This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into consideration the existence of these electronic records. These records were reviewed in connection with the decision below. The issue of entitlement to service connection for an acquired psychiatric disability, other than PTSD, to include depressive disorder NOS is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The most probative medical evidence of record does not show a diagnosis of PTSD in accordance with DSM-IV or DSM-V. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for PTSD are not met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304(f) (2015). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist As set forth in the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2014). Under the VCAA, when VA receives a claim, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim; that VA will seek to provide; and that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice 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). The notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the 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). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. In this case, the VCAA duty to notify was satisfied by letters sent to the Veteran in January 2012, which fully addressed the entire notice element and was sent prior to the initial adjudication of the claim. The letter informed the Veteran of what evidence was required to substantiate his claim, of his and the VA's respective duties for obtaining evidence, and what type of information and evidence was needed to establish a disability rating and the possible effective date of the benefits. The AOJ successfully completed the notice requirements with respect to the issue on appeal. Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Additionally, VA has a duty to assist the Veteran in claim development. This includes assisting in the procurement of service treatment and pertinent post-service medical records, as well as providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran's service treatment records and post-service treatment records have been obtained and considered. The Veteran has not identified any pertinent outstanding records that have not been obtained. The Veteran underwent VA examinations in January 2012 and January 2014 which involved a review of the claims file, an in-person interview, a psychiatric assessment, and an opinion concerning the Veteran's condition. An addendum VA opinion was also obtained in September 2012. The Board finds this evidence to be adequate because the examiners based their opinions upon consideration of the Veteran's prior medical history, described the Veteran's condition in sufficient detail so that the Board's evaluation will be fully informed, and supported all conclusions with analyses that the Board could consider and weigh against contrary opinions. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board thus finds that all relevant facts have been properly developed, and all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claim. VA's duty to assist the Veteran has been satisfied. II. Legal Criteria Under the laws administered by VA, service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishment of service connection for PTSD requires: (1) medical evidence diagnosing PTSD in accordance with 38 C.F.R. § 4.125(a), i.e., a diagnosis conforming to specified diagnostic criteria (currently the DSM-5); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). Effective March 19, 2015, VA adopted as final, without change, an interim final rule amending the portion of its Schedule for Rating Disabilities dealing with mental disorders. The interim final rule replaced outdated references with references to the Fifth Edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-V) and updated the nomenclature used to refer to certain mental disorders in accordance with DSM-V. Specifically, the rulemaking amended 38 C.F.R. §§ 3.384, 4.125, 4.126, 4.127, and 4.130. The final rule amends the language of the applicability date to ensure clarity and avoid potential misapplication of the final rule. The provisions of this final rule applies to all applications for benefits that are received by VA or that are pending before the agency of original jurisdiction on or after August 4, 2014. The Secretary did not intend for the provisions of this final rule to apply to claims that were pending before the Board (i.e., certified for appeal to the Board on or before August 4, 2014), the United States Court of Appeals for Veterans Claims, or the United States Court of Appeals for the Federal Circuit on August 4, 2014, even if such claims are subsequently remanded to the agency of original jurisdiction. This appeal was certified to the Board after August 4, 2014. Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit, citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2014). Moreover, the United States Court of Appeals for Veterans Claims has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). Furthermore, in determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Thus, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. III. Background Information The Veteran contends that service connection is warranted for PTSD as related to service. Specifically, he stated in January and February 2012 that he was attached to the Naval Support Activity in DaNang, Vietnam, and was detached to Phu Bai, Nam Hoa, and the 3rd Marines from 1968 to 1969 where he engaged in several firefights, received many mortar and rocket rounds, viewed many deaths and wounded. He also stated that he killed a young boy around January 1969 in Nam Hoa during a firefight. The Veteran's spouse submitted a statement in January 2012, attesting to his symptoms to include nightmares, sleep disturbances, perimeter checks, and isolation. The Veteran was afforded a VA examination in January 2012 in which he reported a history of depressive symptoms that he experienced on and off since his military service but worsened since he retired. The examiner stated that the Veteran did not meet the DSM-IV-TR diagnostic criteria for the diagnosis of PTSD based on his responses on objective testing measures. The examiner opined that there was no objective evidence or data to support a diagnosis of PTSD at the time of the examination. The examiner stated that the Veteran did not receive treatment for a mood disorder while in military service, and he first sought treatment for his mood problems in June of 2011. The examiner opined that the Veteran's current problems related to his mood were not caused by or a result of his military service; this opinion was based on review of the Veteran's claims file, health records, test results from the current examination, DSM-IV diagnostic criteria, diagnostic clinical interview, and the training and experience of the examiner. The Veteran submitted a VA psychiatry service progress note in April 2012 in which Dr. J.L. diagnosed PTSD. Dr. J.L. stated that he had treated the Veteran for the prior year or so, and the Veteran had the symptoms for the diagnosis of PTSD. Additional treatment notes, to include in June and July 2011 showed diagnoses of PTSD. The Veteran also submitted an April 2012 letter from VA Dr. B.P. that showed a diagnosis of PTSD, chronic, combat-related. Dr. B.P. stated that he treated the Veteran since July 2011, and that clinical contact with him allowed for an assessment of his symptoms of PTSD. An addendum VA opinion from the January 2012 examiner was received in September 2012 in which she found that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted review of the claims file, to include the aforementioned April 2012 VA treatment note. The examiner stated that this note included subjectively reported symptoms from the Veteran with no mention of any objective data or indication of collection of objective evidence in support of making the clinical diagnosis of PTSD. The examiner also stated that June and July 2011 notes revealed that diagnoses of PTSD were made by two psychologists based on item scores from the PCL-C and PCL-M which did not have validity scales and were merely self-report measures of subjective symptoms. It was noted that this assessment instrument (PCL) was best used to screen individuals for further evaluation for PTSD and monitoring symptom change during and after treatment in clinical and research settings according to the research literature and VA National Center for PTSD. The September 2012 VA examiner also noted that mere participation in individual or group treatment was not sufficient to make a clinical diagnosis of PTSD. The September 2012 VA examiner noted that review of the prior January 2012 VA examination revealed that the Veteran was not diagnosed with PTSD based on invalid test results from the trauma symptom inventory completed prior to the diagnostic clinical interview. The examiner stated that this inventory was an objective testing measure with well documented validity scales; the Veteran's responses to testing items produced an atypical response scale score which was at a level of over-endorsement of symptoms that was often associated with over-exaggeration or feigning of symptoms. The examiner stated that there continued to be no new objective evidence presented that would support the clinical diagnosis of PTSD. The examiner stated that mental health progress notes and the letter submitted by the Veteran's mental health provider continued to be subjective in nature and gave no information with regard to objective evidence or data to support their clinical diagnosis. Dr. B.P. submitted a statement in December 2012 that noted a diagnosis of PTSD, chronic, combat-related. Dr. B.P. stated that the aforementioned January 2012 examination did not acknowledge or allow for clinical credence that combat Veterans with diagnoses of PTSD may produce invalid profiles on the trauma symptom inventory when experiencing high levels of traumatic stress responding, as manifested in dissociative-related symptoms and high levels of avoidance behavior. Dr. B.P. stated that he observed such traumatic stress responding by the Veteran in a manner that provided evidence of not only these noted challenges but traumatic stress reactions that spanned the symptoms clusters of PTSD, allowing for clinical data that augmented and confirmed the Veteran's self-report of symptoms and subsequent impairment. Dr. B.P. opined that the results noted in the January 2012 examination did not accurately account for or recognize the symptom profile, severity, limitations, and impairment faced by the Veteran as a result of his combat-related PTSD. The Veteran was afforded a VA examination in January 2014 in which the examiner noted the prior diagnosis of PTSD in July 2011 with support of the PCL-M. The examiner stated that this instrument had no validity scales and was best used in conjunction with other measures of PTSD. The examiner noted that the Veteran received another diagnosis of PTSD from psychiatry without support of valid objective testing. The examiner opined that the Veteran's reported mental health symptoms did not meet the DSM-IV-TR or DSM-5 diagnostic criteria for the diagnosis of PTSD based on objective test results and diagnostic clinical interview from the current examination. The examiner opined that there was no objective evidence or data to support the diagnosis of PTSD. The examiner stated that the Veteran's scores on the trauma symptoms inventory were valid, but far below clinical threshold for a diagnosis. The examiner found that the Veteran's previous diagnoses of PTSD were conferred in a clinical context and appeared to have been based predominantly on his subjective report of symptoms, with no objective assessment of response style conducted. The January 2014 VA examiner also stated that the Veteran's post-deployment examination was silent for psychiatric complaints, and no mental health complaints were made until 41 years after his service in Vietnam. The examiner noted that, during that time, the Veteran successfully managed a career and raised a family, which indicated little social or occupational impairment. IV. Analysis Upon review of the record, the Board finds that the most probative medical evidence shows that the Veteran does not have a valid diagnosis of PTSD in this case, and he is not shown to have had a valid PTSD diagnosis at any time during the pendency of this appeal. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the requirement of having a current disability is met "when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim"). The Board notes that greater weight may be placed on one physician's opinion over another depending on factors such as reasoning employed by the physicians and whether or not and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36 (1994). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). Review of the medical evidence in this case (as well as the inherent nature of psychiatric diagnoses in general) indicates that a diagnosis of PTSD must rely significantly upon reference to the Veteran's psychiatric symptoms as he experiences and reports them to mental health professionals. If a diagnosis of PTSD is based upon invalid symptom information, then the validity of the PTSD diagnosis is undermined. The Board notes that two different qualified and competent VA examiners have explained that the Veteran's scores on the trauma symptoms inventory were invalid or valid but far below clinical threshold for a diagnosis. The opinions proffered by the January/September 2012 and January 2014 VA examiners, that the Veteran does not have PTSD in accordance with DSM-IV or DSM-V, were supported by objective testing and well-reasoned, thoroughly explained rationale as to why such diagnostic criteria were not satisfied. The Board thus finds that, collectively, such evidence should be accorded great probative weight. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). Conversely, the opinions offered by Dr. B.P. are less probative because they are based upon acceptance of the Veteran's own reports of psychiatric symptoms without any suggestion in the record that the doctor has administered objective testing that refutes the VA examiners' test results discussed above. Rather, Dr. B.P.'s contradiction of the VA examiners' opinions consists essentially of conclusory assertions that the Veteran has PTSD. Additional diagnoses of PTSD by treating VA examiners, to include treatment in June and July 2011, were made based on item scores from the PCL-C and PCL-M which did not have validity scales and were merely self-report measures of subjective symptoms. Moreover, this medical evidence did not otherwise account for the objective testing conducted by the VA examiners in January 2012 or January 2014. No evidence establishes a basis for a PTSD diagnosis that is independent of the Veteran's (invalidated or valid but far below clinical threshold for a diagnosis) reports of symptoms. The Board also notes that although Drs. B.P., J.L., and the other treating VA examiners might cite familiarity with the Veteran over a period of time, the Board may nevertheless conclude that their medical opinions in this case are less probative than the medical opinions presented by the January/September 2012 and January 2014 VA examiners. The Federal Circuit Court and U.S. Court of Appeals for Veterans Claims have specifically declined to adopt a "treating physician rule" that would give preference to statements from a treating physician. White v. Principi, 243 F.3d 1378 (Fed. Cir. 2001); Guerrieri v. Brown, 4 Vet. App. 467 (1993). The Board notes that the January/September 2012 VA examiner used the DSM-IV and the January 2014 VA examiner used the DSM-IV and DSM-V in the course of conducting their evaluations and reaching the diagnostic conclusions. The Board finds that despite the use of DSM-IV by the January/September 2012 VA examiner, the January 2014 examiner used both criteria, and the overwhelming weight of the probative evidence demonstrates that the diagnostic criteria for a diagnosis of PTSD have not been met. With respect to whether service connection is warranted for PTSD, the Board finds that it is not. The first requirement for any service connection claim is evidence of a current disability. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223 (1992). The weight of the evidence shows that the Veteran does not meet the DSM-V criteria for PTSD. Absent evidence demonstrating the presence of a current disability, service connection for PTSD must be denied. To this point, the Board notes that while there is medical evidence of record that shows diagnoses of PTSD, the Board finds that the weight of the evidence demonstrates that the Veteran does not meet the DSM-IV or DSM-V criteria for a diagnosis of PTSD. The Board notes that lay persons are competent to provide opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). However, an acquired psychiatric disorder falls outside the realm of common knowledge of a lay person. Thus, while the Veteran can competently report his symptoms, an actual diagnosis requires objective testing. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). To the extent that the Veteran himself believes that he has PTSD, as a lay person, he is not shown to possess any specialized training in the medical field. The Veteran's opinions as to diagnosis of his current symptoms are not competent medical evidence, as such question requires medical expertise to determine. Id. In any event, the Board concludes that the medical evidence is of greater probative value than the lay contentions of the Veteran, his spouse, or his representative. To this point the Board acknowledges the January 2012 statement by the Veteran's spouse; however, there is no indication that the behaviors described by her are sufficient to establish symptomatology for a confirmed psychiatric diagnosis of PTSD independent of the Veteran's own invalidated descriptions of his psychiatric symptom experiences. In sum, the Board finds that the most competent and probative evidence fails to validly diagnose PTSD. Accordingly, service connection for PTSD is not warranted on any basis. In reaching the conclusion above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, 1 Vet. App. 49, 55-57. ORDER Entitlement to service connection for PTSD is denied. REMAND The Board is of the opinion that additional development is required before the Veteran's claim of entitlement to service connection for an acquired psychiatric disability, other than PTSD, to include depressive disorder NOS is decided. To this point, the AOJ has not adjudicated the issue of entitlement to service connection for psychiatric disability other than PTSD and has not provided the Veteran notice in compliance with the Veterans Claims Assistance Act of 2000 (VCAA) appropriate to such a claim. Such development and adjudication by the originating agency must be performed on remand. Accordingly, the case is REMANDED for the following action: 1. The AOJ should undertake appropriate development of the issue of entitlement to service connection for psychiatric disability, other than PTSD, to include depressive disorder NOS, including the provision of the notice required under 38 U.S.C. § 5103(a) (West 2014) and 38 C.F.R. § 3.159(b) (2015). 2. After the above development has been completed, the AOJ should obtain a supplemental VA opinion to address the etiology of any acquired psychiatric disability [other than PTSD, which has already been found by the Board to not be a current disorder] diagnosed during the pendency of this appeal, to include depressive disorder. If such examiner indicates that he or she cannot respond to the Board's question without examination of the Veteran, an examination should be scheduled. The electronic claims file should be made available for review in connection with this request. The examiner should offer the following opinion: Is it at least as likely as not (a 50 percent or greater probability) that any acquired psychiatric disability[ other than PTSD]diagnosed during the pendency of this appeal, to include depressive disorder, began during service or is otherwise linked to service? The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should provide a rationale for his or her opinion with reference to the evidence of record and should provide a discussion of the facts and medical principles involved. 3. The AOJ should undertake any additional development it determines to be warranted. 4. Then, the AOJ should adjudicate the issue of entitlement to service connection for psychiatric disability, other than PTSD, to include depressive disorder NOS in light of all pertinent evidence and legal authority. If the benefit sought on appeal is not granted to the Veteran's satisfaction, a Supplemental Statement of the Case should be furnished to the Veteran and his representative, and they should be afforded the requisite opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for further appellate action. By this remand the Board intimates no opinion as to any final outcome warranted. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs