Citation Nr: 1601864 Decision Date: 01/15/16 Archive Date: 01/21/16 DOCKET NO. 09-27 120 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for psychiatric disability, to include posttraumatic stress disorder (PTSD) and depression. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The Veteran served on active duty from May 1968 to March 1971. This appeal comes before the Board of Veterans' Appeals (Board) from an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in August 2007. The Veteran testified at video conference hearing before the undersigned Veterans Law Judge in April 2013. A transcript of the hearing is of record. When the case was before the Board in June 2013, the Board granted reopening of the Veteran's claim and remanded the reopened claim for further development. The record before the Board consists of the physical claims files and electronic records within Virtual VA and the Veterans Benefits Management System (VBMS). FINDING OF FACT No acquired psychiatric disorder was present until more than one year following the Veteran's discharge from service, and no acquired psychiatric disorder present during the period of the claim is etiologically related to service. CONCLUSION OF LAW A psychiatric disability, to include PTSD and depression, was not incurred in or aggravated by active service, and the incurrence or aggravation of a psychosis during such service may not be presumed. 38 U.S.C.A. §§ 1101, 1110, 1112 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2014), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2015), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held the plain language of 38 U.S.C.A. § 5103(a) requires notice to a claimant pursuant to the VCAA be provided "at the time" or "immediately after" VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement articulated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that VA sent to the Veteran all required notice in a September 2006 letter, prior to the rating decision on appeal. The Board also finds the Veteran has been afforded adequate assistance in regard to the claim on appeal. VA obtained the Veteran's service treatment records and all relevant VA and private medical treatment records identified by the Veteran and for which he provided appropriate authorization. Pursuant to the Board's June 2013 remand instructions, the Veteran by a June 2013 letter was requested to identify additional private treatment, and to provide appropriate authorization. He did not thereafter provide information and authorization to allow VA to obtain any additional private records. VA afforded the Veteran an appropriate VA psychiatric examination in August 2013, pursuant to the Board's remand instructions. The Board has reviewed the examination report and finds substantial compliance with the requirements articulated in the Board's remand. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The VA examiner appropriately considered the record and current clinical findings and provided findings and opinions sufficient for the Board's adjudication of the claim. The Veteran was also afforded a hearing before the Board. Neither the Veteran nor his representative has identified any additional evidence that could be obtained to substantiate the claim. The Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the claim. Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection also may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection for PTSD generally requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (i.e., under the criteria of Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptoms and the claimed in-service stressor. 38 C.F.R. § 3.304(f); see Cohen v. Brown, 10 Vet. App. 128 (1997). Where a veteran served for at least 90 days during a period of war and manifests a 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. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as opposed to merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service (or during any applicable presumptive period) is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). The term "chronic disease" refers to those diseases, such as psychosis, listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C.A. § 1101(3); 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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 (West 2014); 38 C.F.R. § 3.102 (2015); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background and Analysis The Veteran does not contend that he was stationed in Vietnam during the Vietnam Era or that he personally experienced combat. He contends that he suffers from PTSD related to having repeatedly viewed films of graphic combat occurrences as part of his duties as an instructor in a spy school for foreign nationals while stationed in Okinawa, Japan. The Veteran's personnel records do confirm that the Veteran was stationed at an intelligence school in Okinawa, Japan, between 1969 and 1971. The Veteran endorsed some mental health symptoms upon his report of medical history for service pre-induction examination in July 1967, but his mental status was found to be normal on the pre-induction examination. The service treatment records are otherwise negative for evidence of any psychiatric disorder. In addition, there is no record of mental health treatment for years post service. The Veteran conceded at his August 2013 VA examination that he had falsely endorsed mental symptoms in his July 1967 report of medical history in an effort to avoid being sent to Vietnam, as discussed below. The Veteran separated from service while still stationed in Japan at his own request, to allow him to remain in Japan and study Japanese at a university there. Records reflect that he used VA education benefits for this purpose. The Veteran has a history of behavioral health treatment from Kaiser Permanente beginning in August 2001, when difficulties with fatigue and lack of energy were thought to be related to a kidney donation. He had various complaints in 2001 and 2002 including weight gain, hot flashes, and sleep problems. He was then noted to have a history of worry, anxiety, and depression. The earliest VA mental health records begin in August 2006, when he reported a history of depression, anxiety, and substance use, with reported treatment since the 1980's with Prozac. Subsequent to this August 2006 visit, the Veteran received mental health treatment at VA facilities on an intermittent basis. Mental disorders including PTSD, depression, and alcohol abuse. At his April 2013 hearing before the undersigned, the Veteran testified to seeing very graphic movies of combat in Vietnam while he was stationed in Japan for 14 to 16 months with the United States Army Intelligence Branch. He explained that he showed these films to foreign nationals who were students at the facility, as part of their training to be spies. His duties included preparing slides for the classes and film presentations. He added that he saw the films monthly in the course of this work. The Veteran testified to having "issues" up to the present time related to these experiences in service, and that he took medication for anxiety and depression. The Veteran added that following service he went to school, but he could not concentrate and began drinking heavily, and so he left school, got married, and got a job, but difficulties persisted. He testified to difficulties, including having a very hard time dealing with other people telling him what to do. He also testified to trying to avoid social gatherings and not liking being around people. Further, he admitted to substance abuse following service, including three DUI's, and going through rehabilitation. Recurring nightmares were also still present. He testified to "constant headaches" and some memory difficulties. He reported that seeing the films in service made him want to avoid going to Vietnam. Upon VA examination in August 2013, the examiner noted the Veteran's history and reviewed the record. The Veteran recounted being stationed in Japan and working as an illustrator for his overseas tour of duty, and during that interval he reported that he saw repeated movies shown to foreign nationals who were being trained as spies, and these films involved scenes of graphic warfare from Vietnam. The examiner noted that the Veteran's self-reported reactions to seeing these films included an enhanced desire to avoid going to Vietnam, as well as dreading going to Vietnam. However, the examiner repeatedly questioned the Veteran and noted that the Veteran's self-reported reaction to seeing the films did not involve dreading seeing the films themselves, or feeling anxious about the films, or that any changes in emotions or behaviors resulted from seeing the films. He also reported to the examiner that he had excellent job performance while stationed in Japan, with good recommendations. He wanted to stay in Japan for two years after his tour of duty and did so. The examiner noted the Veteran's self-reported history of steady, successful employment in multiple career fields following service, without reported difficulties with productivity related to his mental health. The Veteran testified that he began receiving treatment for his difficulties approximately 25 or 30 years ago, in the 1980s, when his wife had insurance to cover the treatment. However, he endorsed that much of his difficulties were with drinking which he reported he did to try to forget things. The Veteran reported that VA had received his records of this treatment beginning in the 1980s or the 1990s with Kaiser Permanente. Regarding symptoms, the Veteran reported to the examiner that when he first got out of service he used to think about the films and the foreign students and feel sorry for the people that died. He reported that now he thinks of the films and feels guilty that he was not in Vietnam and did not actually witness in person the things he saw in the films. However, the Veteran then reported to the examiner that he never felt scared by what he saw in the films, and rather felt that he never experienced it but someone else experienced it for him. Regarding current reactivity, the Veteran reported that he might have some reaction now, feeling "clenched up" when watching war films. Regarding current functioning, the Veteran reported having difficulty listening to people, losing interest, and becoming tired from conversations. He also reported being easily distracted. The Veteran did not provide any examples of anxiety, other than sometimes feeling sweaty. He provided a history of a sleep pattern in the last five to six years of waking up at 3:30 a.m. and having difficulty falling back asleep, but that on a typical night he would sleep from midnight until sometime between 5:30 a.m. and 9:00 a.m. He added that sometimes he might wake up sweaty from a dream, though he was unsure of the specific content of the dreams. He reported a history of some suicidal ideation in the context of marital conflicts in the 1990s, when he was also consuming a lot of alcohol. He denied current suicidal or homicidal ideation, intent, or plan. The Veteran endorsed an occasional low or down mood, but had no problems with inactivity or vegetative symptoms. The Veteran vaguely reported past reckless behavior. He denied any panic attacks, obsessions or compulsions, auditory or visual hallucinations, or delusional thought content. At the examination, the examiner observed the Veteran to be alert, attentive, not easily distractible, open, pleasant, congenial, and with good grooming and hygiene. Affect was in the normal range, though he did at times have pressured speech and tangentiality. The examiner found the Veteran difficult to redirect from a narrative at times, but cognitive functioning was within normal limits. The Veteran's last DUI was in the 1990s, and he also had a domestic violence charge in the 1990s, for which he had to attend anger management classes. Psychological testing was administered and gauged as valid with some caution due to likely minor over-reporting. Testing revealed likely minor, circumscribed problems, though with difficulties dealing with these problems. The examiner diagnosed a mild mood disorder, but concluded that this was likely to have begun after service, based on absence of treatment for symptoms prior to the 1980s, based on the absence of documentation suggesting onset in service, and based on the Veteran not having reported that mood symptoms began in service. The examiner concluded that the Veteran did not meet the diagnostic criteria for PTSD based on the self-reported incidents of watching graphic films of warfare while in service, with criterion A not met because, "there was no response of fear, horror, or helplessness when watching the films." The examiner rather assessed that the Veteran's occasional distressing memories of the films, while they were symptoms resulting from having watched the films, did not indicate psychological disability. Rather, the examiner noted that the self-reported avoidance symptoms were "subclinical" since the Veteran reported having been successful at several jobs over the years which required significant interpersonal interactions. The examiner added that self-reported past difficulties in family interactions appeared to be related to alcohol use. The examiner noted that the Veteran's self-reported attendance at large-scale public events (such as baseball games which the Veteran reported he was to be attending following the examination) and his report of watching military-related movies also did not suggest PTSD, with, "no specific hyperarousal symptoms which can be linked to the trauma." The examiner additionally concluded that the Veteran's alcohol abuse was not related to or caused by a mood disorder, observing that while the Veteran reported that he began drinking in service, he reported doing so because it was the "norm." His alcohol use eventually became "socially impairing" in the context of his marriage following service. In short, the examiner assessed both a mood disorder with depressive symptoms and alcohol dependence, but did not find that the mood disorder was related to service, but rather appeared to have begun following service "in the setting of marital difficulties." The examiner noted that the Veteran had endorsed several mental health symptoms upon service entrance examination (this was actually a pre-induction examination, as noted above), but the Veteran reported to the August 2013 examiner that he had endorsed those symptoms upon pre-induction not because he had them but rather in an effort to avoid being sent to Vietnam. The Veteran denied to the August 2013 examiner that he in fact had any mental health symptoms upon service entry. The Board finds the weight of the competent and credible evidence of record to be supportive of and generally consistent with the following findings and conclusions of the VA examiner in August 2013: the Veteran did not have a mood disorder until years after service in the context of marital difficulties; this mood disorder is not causally related to service; and the Veteran does not meet the diagnostic criteria for PTSD. While some treating clinicians did diagnose PTSD or depression or anxiety related to the self-reported in-service stressor of watching combat films while stationed in Okinawa, Japan, the Board finds the weight of competent and credible evidence to favor the contrary conclusions of the August 2013 examiner, based on the absence of reaction to the films evidencing fear, horror, or helplessness, and absence of subsequent hyperarousal symptoms associated with the in-service stressor. Specifically, a treating VA psychiatrist in March 2013 assessed that the Veteran "most likely" had PTSD as related to the self-reported in-service incidents of watching films of combat. However, this psychiatrist failed to address whether the Veteran experienced feelings of fear, horror, or helplessness in reaction to watching these films, even while noting that the Veteran had endorsed the film watching as "stressors." This treating psychiatrist listed as an "arousal" symptom the Veteran's difficulty falling or staying asleep. However, the VA examiner in August 2013 noted that these sleep difficulties were "late insomnia without nightmares" which the examiner noted was "typically more associated with depression than anxiety." The March 2013 treating psychiatrist failed to identify a mood disorder beyond listing depression as present on the Veteran's "computerized problem list," despite the Veteran's historical self-report of depressive symptoms. The Board also finds the weight of the evidence favors the August 2013 VA examiner's conclusions that the Veteran suffers from a mood disorder attributable to marital difficulties and/or alcohol abuse, with the mood disorder not manifesting until years following service. These conclusions are based on the historical record, the Veteran's own self-reported chronology of events and symptoms of disability, and clinical evaluation and psychological testing. In contrast, it is unclear that the March 2013 treating psychologist based his assessment of PTSD on much more than finding generally endorsed symptoms which vaguely, potentially met each of the criteria for a diagnosis of PTSD. Thus, notably, the March 2013 assessment was only a tentative and not a confirmed diagnosis of PTSD. This tentative diagnosis is significantly outweighed by the more careful, specific, historically-based, clinically-based and testing-based evaluation by the August 2013 examiner. Other VA treatment records which note or otherwise assess PTSD also do not do so based on a review and discussion of diagnostic criteria for PTSD, and hence ultimately provide insufficient support for a diagnosis of PTSD. They are thus also outweighed in their assessment of PTSD by the more thorough, better informed, and contrary findings and conclusions of the August 2013 VA examiner. While the Veteran may sincerely believe that he has a current psychiatric disorder related to experiences in service, questions of diagnosis of PTSD and etiology of other psychological disorders which began subsequent to service are distinctly clinical questions beyond the ambit of lay knowledge. The Veteran has not been shown to possess the requisite expertise or knowledge to address these questions. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). While the Veteran's use or abuse of alcohol appears to have begun in service, service connection may not be granted for alcohol abuse or dependence on a direct basis. See 38 U.S.C.A. § 1110. While service connection for alcohol abuse or dependence is not precluded if the abuse or dependence was caused or worsened by service-connected disability, there is no basis for granting secondary service connection in this case. The weight of the evidence is also against the presence of any psychosis within the first post-service year, since a psychosis is nowhere assessed in the record. The Board accordingly concludes that PTSD has not been present during the period of the claim, no acquired psychiatric disorder was present until more than one year after the Veteran's discharge from service, and no acquired psychiatric disorder present during the period of the claim is related to service. Accordingly, the claim must be denied. In reaching this decision, the Board has considered the benefit of doubt doctrine but has determined that it is not applicable to this claim because the preponderance of the evidence is against the claim. (CONTINUED ON NEXT PAGE) ORDER Service connection for a psychiatric disability, to include PTSD and depression, is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs