Citation Nr: 1610253 Decision Date: 03/15/16 Archive Date: 03/22/16 DOCKET NO. 11-01 036 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, including posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Christopher Loiacono, Agent ATTORNEY FOR THE BOARD A. MacDonald, Associate Counsel INTRODUCTION The Veteran had active service in the Army from October 1985 to January 1993, including service in Desert Storm in Saudi Arabia. This appeal comes to the Board of Veterans' Appeals (Board) from a May 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. As such the Board has recharacterized the issue of entitlement to service connection for PTSD as entitlement to service connection for an acquired psychiatric disorder, to include PTSD. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Veteran was initially scheduled for a hearing before a Veterans Law Judge in July 2015. However, in a June 2015 written statement the Veteran withdrew his request for a hearing. 38 C.F.R. § 20.204. In that same statement, the Veteran's representative also requested the record be held open for an additional sixty days so more evidence may be submitted. The record was held open well in excess of the requested sixty days, however to date no additional evidence has been received. This appeal was processed using the VBMS paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. The Veteran did not meet the criteria for a diagnosis of PTSD. 2. The Veteran's diagnosed major depression did not begin during, or for several years after, his active duty service, and was not otherwise related to his service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, including posttraumatic stress disorder (PTSD), have not been met. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.304(f), 4.125(a) (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran is seeking service connection for an acquired psychiatric disorder, including PTSD. In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. § 3.304(f). Effective August 4, 2014, 38 C.F.R. § 4.125(a) requires a diagnosis which conforms to the DSM-5 (Diagnostic and Statistical Manual of Mental Disorders). However, prior to that date, the regulation required a diagnosis consistent with the DSM-IV. Because the Veteran filed his current claim prior to August 2014, in affording all benefit of the doubt to the Veteran, the Board finds a diagnosis under DSM-IV or DSM-5 shall fulfill the requirements of 38 C.F.R. § 4.125(a). The Board notes that VA regulations provide that if the veteran was engaged in combat with the enemy, and his claimed stressor is related to that combat, then the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor, as long as there is not clear and convincing evidence to the contrary. 38 C.F.R. § 3.304(f)(2). In this case, the Veteran has reported that he saw combat in the Gulf War. See e.g. September 2009 VA treatment record. However, his service records do not reflect he served in combat. These records do reflect he served in the Gulf War, and was in Saudi Arabia from December 1990 to May 1991. However, his DD214 does not list any medals indicating service in combat, and combat is not otherwise noted or suggested in his service personnel or medical treatment records. Therefore, the evidence does not establish the Veteran was exposed to combat during his active duty service, and 38 C.F.R. § 3.304(f)(2) does not apply. Additionally, the Board notes that in 2010 the VA amended its regulations governing service connection for PTSD by liberalizing the evidentiary standard for establishing the required in-service stressor in some situations. 38 C.F.R. § 3.304(f). However, this added paragraph of relaxed standards only applies "if a stressor claimed by the veteran is related to the veteran's fear of hostile military or terrorist activity." 38 C.F.R. § 3.304(f)(3). In this case, the Veteran initially described his stressor as in January 1991, he was lost from his convoy in Iraq and came upon a mass grave site, where he observed burned bodies and severed limbs. See e.g. March 2010 written statement. However, internet research included in the file reflects the Veteran's unit did not cross the border into Iraq until February 1991. Therefore, he could not have discovered the reported mass grave in Iraq in January 1991, and this reported stressor is not consistent with the terms of his service. In subsequent written statements he describes an additional stressor of being thrown from his vehicle after it was struck by an IED. The Veteran has reported this is the same event which caused his service-connected back disability. Service treatment records reflect the Veteran began to experience back pain in the summer of 1992 after falling off of a truck, but these records do not indicate the Veteran's truck was struck by an IED. Because being struck by an IED would have been relevant to the course of his medical treatment, the failure to include any notation related to an IED provides evidence against the Veteran's assertion. Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011). Therefore, the evidence does not corroborate that either of the Veteran's described in-service stressors occurred. Furthermore, as will be discussed below, the evidence does not establish the Veteran is currently diagnosed with PTSD, or other acquired psychiatric disorder related to his active duty service. Service treatment records were carefully reviewed and considered, but do not reflect the Veteran sought any treatment for, or was otherwise diagnosed with, any psychiatric disorder. Instead, on his November 1992 separation examination several medical problems were noted, including a back condition, but his psychiatric condition was noted to be normal. On his accompanying report of medical history he endorsed experiencing some symptoms, including back pain and leg cramps, but specifically denied experiencing depression, excessive worry, frequent trouble sleeping, or "nervous trouble of any sort." Therefore, service treatment records do not reflect he developed symptoms of any psychiatric disorder during his active duty service. The Veteran then filed his initial claim for VA benefits in May 1993, a few months after his separation from active duty service. By filing this claim, the Veteran demonstrated he was familiar with the VA benefits system. However, his initial claim did not include any indication of psychiatric problems. Furthermore, in March 1999 he filed an additional claim for several new disorders, but again did not make any indication of a psychiatric disorder. Accordingly, his failure to include psychiatric disorders in his initial two claims provides evidence against his assertions that he experienced psychiatric symptoms since his active duty service. More persuasively, in medical records from the years following his active duty service he specifically denied experiencing several psychiatric symptoms. For example, in a January 2000 VA treatment record he specifically denied experiencing any depression during an intake screening. In April 2009, he specifically denied experiencing anxiety, depression, or PTSD symptoms in the past month. Therefore, the Veteran's own contemporary statements during the course of medical treatment provide probative evidence against his later assertions that he experienced psychiatric symptoms since his active duty service. See Harvey v. Brown, 6 Vet. App. 390, 394 (1994). In July 2008, the Veteran sought treatment for his reported anger symptoms. The Veteran explained these symptoms first became manifest during his current third marriage, beginning in 2002, and were triggered by his wife leaving the house messy. The VA physician opined the Veteran did not meet the criteria for PTSD or major depression, but instead his anger problems were related to his current post-service household. In July 2009, the Veteran began to report new psychiatric symptoms, including startle response, combat nightmares, and seeing of shadowy figures. The following month a VA physician assistant diagnosed him with anxiety disorder and a provisional diagnosis of PTSD, and referred him for a mental health evaluation. In September 2009, the Veteran's mental health was evaluated by a VA physician. During this visit, the Veteran reported he experienced combat during the Gulf War, and since then continues to have nightly combat-related nightmares. Based, in part, of the Veteran's statements describing combat, the physician diagnosed him with PTSD. However, as discussed above, the Veteran's service records do not reflect he ever served in combat. Accordingly, the VA physician's diagnosis of PTSD was based, in part, on an inaccurate factual basis, and therefore is limited in probative value. See Swann v. Brown, 5 Vet. App. 229, 233 (1993). Subsequent medical records from 2009 note the Veteran "continues" to experience PTSD symptoms. See e.g October 2009 VA treatment record. However, these continued diagnoses are an extension of the September 2009 diagnosis based on an inaccurate factual statement, and are accordingly also limited in probative value. In November 2010, the Veteran was provided with a VA examination with a clinical psychologist. The examiner reviewed the claims file, as well as personally interviewed and examined the Veteran. The Veteran reported experiencing symptoms of PTSD, including re-experiencing and persistent avoidance of triggers. He indicated he experienced these symptoms since his service in Saudi Arabia, but the military never advised him about the symptoms of PTSD so he didn't know to seek treatment. However, the examiner noted the Veteran specifically denied experiencing these mental health symptoms on several occasions after his service, as noted above. For this reason, the examiner expressed a "concern about credibility" of the Veteran. Therefore, the examiner opined he could not resolve the reported symptoms of PTSD without resorting to mere speculation. Instead, he diagnosed the Veteran was major depressive disorder. He then opined the Veteran's major depressive disorder was not related to his active duty service, based on his interview of the Veteran and review of the claims file. Accordingly, this examiner's report provides probative evidence against the Veteran's appeal, and his assertion of a diagnosis of PTSD. In December 2010, VA clinical psychologist diagnosed the Veteran with depressive disorder, and not PTSD. However, a diagnosis of PTSD continued to be noted by physicians and physicians' assistants throughout 2010 and 2011. For example, in a July 2011 VA treatment record a physician assistant diagnosed the Veteran with PTSD under the DSM IV criteria. In June 2014, the Veteran was provided with an additional VA examination. The examiner reviewed the claims file, as well as personally interviewed and examined the Veteran. The examiner opined that although the Veteran reported some symptoms of PTSD, he did not meet the full criteria under DSM 5. In support of this opinion, the examiner noted the previous 2010 VA examination failed to diagnose PTSD, and so did the August 2012 mental health assessment. Furthermore, the examiner also noted discrepancies in the Veteran's statements regarding his description of these symptoms. For example, during his examination the Veteran reported he experienced nightmares related to his in-service experiences "pretty much every night since 1991," but the examiner noted he specifically denied experiencing any nightmares on PTSD screens previously, and instead first endorses these symptoms in December of 2010. For these reasons, the examiner found a diagnosis of PTSD was not warranted. The examiner instead diagnosed the Veteran with "other specified depressive disorder." However, he opined this depression was not related to his active duty service. In support of his opinion, the examiner noted service treatment records were negative for any symptoms of depression, and the Veteran continued to deny experiencing depression on scans in January 2000, June 2008, and June 2009, as noted above. Instead, the examiner opined his current symptoms of depression were related to his post-military life, including his relationship with his third wife. Therefore, this examiner's opinion provides additional probative evidence against the Veteran's appeal. The Board has considered all of the foregoing evidence, including the diagnosis of PTSD by various VA physicians and physician assistants. However, the Board finds when considering the evidence as a whole, the more probative evidence establishes the Veteran does not meet the criteria for a diagnosis of PTSD. The VA physicians and physician assistants who diagnosed the Veteran with PTSD based their diagnoses, in part, on the Veteran's inconsistent statements regarding his exposure to combat during active duty service, and the consistency of his PTSD symptoms since active duty service, as discussed above. Instead, the two VA examiners, both highly educated professionals in their field, considered the Veteran's complete claims file, including the Veteran's inaccuracies in his statements, and then concluded he did not meet the criteria for PTSD under either the DSM IV, in 2010, or the DSM 5, in 2014. Therefore, the Board finds the probative evidence establishes the Veteran did not meet the criteria for a diagnosis of PTSD at any point during the period on appeal. The Veteran has been diagnosed with additional psychiatric disorders during the period on appeal, including major depressive disorder. See e.g. December 2010 VA phycology consult. However, the medical evidence does not contain any opinion relating the Veteran's currently diagnosed depressive disorder to his active duty service. First of all, the Veteran denied experiencing any symptoms of depression for several years after his separation from active duty service, as discussed above, and therefore the evidence does not establish this disorder began during, and continued since, his active duty service. Secondly, both VA examiners instead opined the Veteran's current depressive disorder was related to post-service stressors, including his relationship with his current wife, and not his active duty service. Based on all the foregoing, the elements of service connection for a psychiatric disorder, including PTSD, have not been met. The evidence does not establish the Veteran met the diagnosis for PTSD, and does not corroborate his claimed stressors occurred. His currently diagnosed major depression did not begin during, or for several years after, his active duty service, and was not otherwise related to his service. Accordingly, service connection for an acquired psychiatric disorder is not established, and the Veteran's appeal is denied. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to veterans. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a veteran before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the veteran about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the veteran about the information and evidence that VA will seek to provide; and (3) inform the veteran about the information and evidence the veteran is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a veteran of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was provided by a letter dated in November 2009, which informed the Veteran of all the elements required by the Pelegrini II Court prior to initial AOJ adjudication. The letter also informed the Veteran how disability ratings and effective dates were established. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment records and post-service VA treatment records have been obtained, and the Veteran has not indicated he received any relevant private treatment. As discussed above, the Veteran was scheduled with a hearing before a VLJ in July 2015, however in a June 2015 written statement the Veteran withdrew his request for a hearing. Accordingly, no hearing was provided. 38 C.F.R. § 20.704(e). The Veteran was also provided with two VA examinations, the reports of which have been associated with the claims file. The Board finds the VA examinations were thorough and adequate, and provided a sound basis upon which to base a decision with regard to the Veteran's claim. The VA examiners personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information necessary to evaluate his disability. Furthermore, neither the Veteran nor his representative has voiced any issue with the adequacy of the examinations. As discussed, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER Entitlement to service connection for an acquired psychiatric disorder, including posttraumatic stress disorder (PTSD), is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs