Citation Nr: 1603216 Decision Date: 02/01/16 Archive Date: 02/11/16 DOCKET NO. 12-17 864 A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas THE ISSUE Entitlement to service connection for a variously diagnosed psychiatric disability, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Schechner, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from April 1969 to November 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision by the Houston, Texas RO. In March 2015, a videoconference hearing was held before the undersigned; a transcript of the hearing is in the record. In April 2015 and September 2015, this matter was remanded for additional development. FINDINGS OF FACT 1. The Veteran is not shown to have a diagnosis of PTSD based on a corroborated stressor event in service or on a fear of hostile military or terrorist activity. 2. A chronic psychiatric disability was not manifested in service; a psychosis was not manifested within one year after the Veteran's separation from service; and no diagnosed psychiatric disability is shown to be related to his service. CONCLUSION OF LAW Service connection for a psychiatric disability, to include PTSD, is not warranted. 38 U.S.C.A. §§ 1110, 1112, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The requirements of 38 U.S.C.A. §§ 5103 and 5103A (West 2002 & Supp. 2014) have been met. By correspondence dated in October 2010, VA notified the Veteran of the information needed to substantiate and complete his claim, to include notice of the information that he was responsible for providing, the evidence that VA would attempt to obtain, and how VA assigns disability ratings and effective dates of awards. Notably, during the March 2015 videoconference Board hearing, the undersigned advised the Veteran of what is still needed to substantiate the claim (evidence of a nexus between the claimed disability and his service); the Veteran's testimony reflects that he is aware of what remains needed to substantiate his claim. The Veteran's service treatment records (STRs) and service personnel records are associated with his claims file, and pertinent postservice treatment records have been secured. The AOJ arranged for VA examinations in March 2011, July 2015 and November 2015. As will be discussed in greater detail below, the Board finds the examination reports (cumulatively) to be adequate for rating purposes, and the November 2015 examination report satisfies the mandate of the September 2015 remand. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran has not identified any pertinent evidence that is outstanding. VA's duty to assist is met. Legal Criteria, Factual Background, and Analysis The Board notes that it has reviewed all of the evidence in the Veteran's record with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). To establish service connection for the claimed disorder, there must be evidence of (1) a current claimed disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Disorders diagnosed after discharge may still be service connected if all the evidence establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Certain chronic diseases (to include psychosis) may be service connected on a presumptive basis if manifested to a compensable degree within a specified period of time following discharge from active duty (one year for psychosis). 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link, or causal nexus, between current symptomatology and the claimed stressor in service. 38 C.F.R. § 3.304(f). Where the veteran did not engage in combat with the enemy, or the claimed stressors are not related to combat, then the veteran's testimony alone is not sufficient to establish the occurrence of the claimed stressors, and his testimony must be corroborated by credible supporting evidence. Cohen v. Brown, 10 Vet. App. 128 (1997). Service department records must support, and not contradict, the claimant's testimony regarding noncombat stressors. Doran v. Brown, 6 Vet. App. 283 (1994). Under the revised (effective July 12, 2010) 38 C.F.R. § 3.304(f)(3): If a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of [PTSD] and that the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 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. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran cited as his alleged stressors in service that, while he was assigned to the Company D 93rd Engineering Battalion at Dong Son, South Vietnam, his unit came under mortar fire at night from time to time. He stated that one night in September 1970, he was in a guard tower when they received many incoming mortar rounds and it was so dark that he could not see anything. The Veteran's STRs are silent for complaints, findings, treatment or diagnosis of a psychiatric disability. His service personnel records (SPRs) reflect that his primary MOS in service was engineer mechanic. He served in Vietnam from January to November 1970. On March 2011 VA examination, the Veteran reported that following his training as an engineer mechanic, he was stationed in Vietnam from January to November 1970 and was then discharged. He did not describe any emotional problems or require any mental health service during the military. He was located primarily in the Delta Region of Vietnam and did not report ever having to discharge his weapon. He reported being involved in mortar attacks and rocket explosions, and that he witnessed people being killed or injured. He reported that there were frequent mortar attacks at night. He reported fear related to hostile military activity, including one night of very heavy mortar attacks as well as machine gun fire in August or September 1970; he did not report any specific injury from this event to himself or anyone in his unit. He reported that he received one Article 15 for not returning to base on time; he received 7 days' suspension and extra duty. He reported that he had not received or required any mental health treatment since discharge from the military. He reported that his symptoms of depression began approximately one year earlier but was unable to pinpoint any particular triggering events that resulted in the development of depressive symptoms. He did not describe symptoms that would be indicative of a diagnosis of PTSD. Following a mental status examination, the diagnosis was depressive disorder, not otherwise specified. The examiner noted the Veteran's report of the onset of symptoms of depression over the previous year, with no report of having significant prior depressive symptoms. The examiner opined that there did not appear to be any reason to believe that the Veteran's current symptoms of depression are due to, caused by, or exacerbated by his military experiences, as their onset was approximately one year prior. Regarding PTSD, the examiner opined that, although the Veteran was exposed to traumatic events during the military to which he did respond with fear related to hostile military activity, he did not presently report any symptoms that would be suggestive of a diagnosis of PTSD; specifically, he did not report symptoms of re-experiencing, avoidance and numbing, or increased arousal. On March 2013 VA treatment, the Veteran reported that he had been depressed for a few months and had lost interest in things; he reported no past psychiatric treatment. The diagnoses included depression not otherwise specified, and rule-out major depressive disorder. On July 2013 treatment, the diagnoses included major depressive disorder and rule-out PTSD. On September 2013 treatment, the diagnoses included major depressive disorder and chronic PTSD. On December 2014 treatment, he also reported symptoms consistent with agoraphobia, reporting that he had quit his job one year earlier due to uneasiness leaving the house; the diagnostic impressions included agoraphobia, PTSD, and major depressive disorder. Subsequent VA treatment records through August 2015 include ongoing assessments of PTSD and major depressive disorder. At the March 2015 Board hearing, the Veteran testified that he had experienced issues ever since he returned from Vietnam but he did not know why, until he sought VA treatment a few years earlier. He testified that he stopped working in June 2013 because of his difficulty getting along with other people. The Veteran has also submitted lay statements from himself and his wife regarding his difficulties due to psychiatric disability. On July 2015 VA examination, the Veteran reported that he had worked for a trucking and construction company until 2 years earlier, when he left because he could not face going to work and did not feel as if he was making decisions well; he was not sure what affected his decision making but he had fears about going out and did not want to leave the house. He reported that he had first sought mental health treatment 3 or 4 years earlier through VA. He reported that he served in the Engineers on a base in the jungle and they were attacked at 1 a.m. with mortars; he was in a guard bunker and was trying to get ammunition out and was shaking badly. He reported having dreams 2 to 3 times per month of being in Vietnam and not being able to get home. He reported having an uneasy feeling most of the time and feeling depressed weekly. Following a mental status examination, the diagnoses included agoraphobia and unspecified depressive disorder. The examiner opined that the Veteran meets the criteria for agoraphobia due to uneasiness in crowds and related to leaving home, and the fear is disproportionate to the actual posed danger of the situations. The examiner opined that the fear is persistent and causes clinically significant distress and is not better explained by another mental disorder. The examiner opined that the symptoms were not related to the Veteran's military stressor; therefore, the disorder was less likely than not incurred in or caused by the experience of his military stressors. The examiner further opined that the Veteran meets the criteria for unspecified depressive disorder, reporting weekly depressed mood, decreased motivation and decreased appetite; the examiner opined that the symptoms were not related to the Veteran's military stressor, and therefore the disorder is less likely than not incurred in or caused by the experience of his military stressors. The examiner opined that the Veteran does not have a diagnosis of PTSD based on a fear of hostile military/terrorist activity in service; he reported that he has distressing dreams 2 to 3 times per month that are related to being in Vietnam and not being able to get home, but he endorsed no other symptoms of PTSD and no other mental health symptoms specifically related to his military stressor. The examiner noted that the Veteran's treating diagnoses were depressive disorders from 2011 to July 2013, and that the diagnosis of PTSD was added in September 2013; documented symptoms were nightmares, avoidance of crowds, and hypervigilance, and the Veteran was referred to individual therapy with a "history of PTSD and depression". The examiner noted that no full assessment for PTSD was noted between 2011 and the time of examination; the examiner opined that PTSD was diagnosed without performing a systematic assessment for the DSM criteria, as the examiner included in the examination note, therefore the clinician arrived at a diagnosis that is useful for clinical purposes but which may not meet the full criteria for a diagnosis as required for purposes of a disability examination. On November 2015 VA examination, the Veteran reported current VA treatment consisting of psychiatric medication and psychotherapy. The examiner cited the March 2011 and July 2015 VA examinations and opined that they accurately summarize the Veteran's medical records. The examiner then cited additional treatment records from August and September 2015 as well as a lay statement from the Veteran's wife describing his difficulties and opining that they are related to a mortar attack in service; the examiner opined that this is inconsistent with the Veteran's statement on examination and in documentation from the two previous examinations. Following a mental status examination, the examiner opined that the Veteran does not meet the criteria for PTSD; the examiner explained that providers have documented a PTSD diagnosis for the Veteran but have not supported the diagnostic conclusion with a narrative discussion of why they believe the Veteran met all requisite criteria. The examiner stated that this is common in clinical records and establishing treatment goals to help the Veteran with their subjective concerns. The examiner opined that the records do not show that the treating providers offer a rationale which identifies all of the symptoms needed for the diagnosis of PTSD. The diagnoses included recurrent moderate major depressive disorder and agoraphobia; the examiner opined that the two disorders exacerbate one another and to that degree are mutually related. The examiner opined that it is less likely than not (less than 50%) that the Veteran's major depressive disorder/depressive disorder not otherwise specified is etiologically related to his service. The examiner noted that the records indicate the earliest possible onset of reported depressive symptoms by the Veteran was approximately 1995, or more than 20 years after his military discharge. He also reported no thought content related to the military, there are no records of mental health treatment during the military to indicate any possible onset of mental disturbance during the military, and the prior examinations describe a gradual onset of depression over many years following the military; therefore, the examiner opined that the Veteran's depression is proximally distant from his military service, uncorroborated by medical records from the military, and did not include any content related to the military. The examiner further opined that it is less likely than not (less than 50%) that the Veteran's agoraphobia is etiologically related to his service, noting that it reportedly began approximately 15 years ago, in 2000, when he had a panic attack on an airplane. The examiner found no corroborating documents to indicate onset during the military and opined that it appears accounted for by an idiosyncratic fear of panic attacks which occur in crowded setting particularly involving travel. The examiner opined that the Veteran's agoraphobia is proximally distant from his military service, uncorroborated by medical records from the military, and did not include any content related to the military; there is also a reasonable etiological explanation that this relates to a history of panic during air travel that began nearly 30 years after military service. The examiner opined that there is no rational basis or substantive evidence to support any nexus between the Veteran's major depressive disorder/depressive disorder not otherwise specified and his military service or between his agoraphobia and his military service. The preponderance of the evidence is against a finding that the Veteran has PTSD. The relaxed evidentiary standards of the revised 38 C.F.R. § 3.304(f)(3) do not apply because while he did serve in an area where he may have been under a threat of imminent bodily harm, he has not been assigned a diagnosis of PTSD based on a fear of hostile military or terrorist activity. Indeed, the VA examiners each opined that he does not merit a PTSD diagnosis (and identified the criteria for such diagnosis found lacking). In summary, the record does not show that the Veteran engaged in combat with the enemy, and does not have a valid diagnosis of PTSD based on a fear of hostile enemy or terrorist activity; multiple VA examiners have found that the constellation of symptoms necessary for such diagnosis was not shown. As a threshold legal requirement for establishing service connection for PTSD (a valid diagnosis of such disability) is not met, service connection for PTSD is not warranted. As the record shows diagnoses of psychiatric disabilities other than PTSD, the analysis proceeds to whether any other psychiatric disability diagnosed may be service connected. A chronic acquired psychiatric disability was not noted in service or clinically noted post-service prior to 2011, and service connection for a psychiatric disability on the basis that such disability became manifest in service and persisted is not warranted. As a psychosis is not shown to have been manifested in the first postservice year, the chronic disease presumptive provisions of 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309 do not apply. The Board finds that the November 2015 VA examiner's report concluding that the Veteran does not have a current psychiatric disability related to service warrants substantial probative weight, as it incorporates findings and statements made by the Veteran throughout the pendency of this claim, and it explains why the complaints and findings shown do not support a nexus between any diagnosis of a psychiatric disability and the Veteran's service. The Board also finds that the March 2011 and July 2015 VA examiners' reports similarly warrant substantial probative weight, as they included mental status examinations and a thorough review of the record with sufficient explanations as to why the complaints and findings do not support a nexus between any diagnosis of a psychiatric disability and the Veteran's service. The Board finds that the service and post-service treatment records, overall, provide evidence against this claim, indicating that the Veteran does not have a current psychiatric disability related to service. The more probative evidence in the record is against a finding that any current psychiatric disability was incurred in or caused by the Veteran's active service. Regarding the Veteran's own opinion that he has a psychiatric disability that is due to his service, he is a layperson and has not demonstrated or alleged expertise in establishing, or determining the etiology of, a psychiatric diagnosis. Those are medical questions beyond the realm of common knowledge or resolution by lay observation. He has not provided any supporting medical opinion or medical treatise evidence; does not cite to any supporting factual data; and does not offer any explanation of rationale for his opinion. Therefore, his opinion in this matter has no probative value. The diagnosis of a specific mental disability is not a matter capable of resolution by lay observation (see Buchanan v. Nicholson, 451 F.3d 1331 (Fed, Cir, 2006)). While a layperson may provide testimony bearing on etiological factors for a psychiatric disability (see Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fe. Cir. 2009)), what has caused a specific psychiatric diagnosis is a question beyond the scope of common knowledge or lay observation. It requires medical training/expertise (see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007)). The preponderance of the evidence is against the Veteran's claim of service connection for a variously diagnosed psychiatric disability, to include PTSD, and the appeal in this matter must be denied. ORDER Service connection for a psychiatric disability, to include PTSD, is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs