Citation Nr: 1611655	
Decision Date: 03/23/16    Archive Date: 03/29/16

DOCKET NO.  10-07 990	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Baltimore, Maryland


THE ISSUE

Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). 


ATTORNEY FOR THE BOARD

A. Larson, Associate Counsel











INTRODUCTION

The Veteran had active duty service from May 2001 to April 2005.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland.

The Veteran originally claimed service connection for PTSD.  However, the United States Court of Appeals for Veterans Claims (Court) has held that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's reported symptoms and other information of record, i.e., that matters of service connection for diagnosed psychiatric disabilities other than PTSD are part and parcel of a service connection for PTSD claim.  See Clemons v Shinseki, 23 Vet. App. 1, 5 (2009). As there is evidence suggesting that the Veteran may have a psychiatric condition other than PTSD, the Board has characterized the issue on appeal as indicated above.


FINDING OF FACT

The Veteran does not have a current psychiatric disorder to include PTSD. 


CONCLUSION OF LAW

The criteria for establishing service connection for an acquired psychiatric disorder, to include PTSD, have not been met.  38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2015).





REASONS AND BASES FOR FINDING AND CONCLUSION

Service connection is granted for disability resulting from personal injury sustained or disease contracted in the line of duty during active military service, or for aggravation during service of a pre-existing condition, meaning for a permanent worsening of the condition above and beyond its natural progression.  38 U.S.C.A. §§ 1110, 1131, 1153; 38 C.F.R. §§ 3.303, 3.306.

"To establish a right to compensation for a present disability, a claimant must show: '(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or an injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called 'nexus' requirement.'"  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).

Specifically for PTSD claims, the record must include (1) medical evidence diagnosing PTSD in conformance with the Diagnostic and Statistical Manual of Mental Disorders, 4th Edition (DSM-IV) criteria; (2) a link, established by medical evidence, between a Veteran's present symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor actually occurred.  See 38 C.F.R. § 3.304(f); Cohen v. Brown, 10 Vet. App. 128, 139 (1997). (The Board recognizes that the Veterans Benefits Administration now utilizes DSM-5; however, this claim was filed before this change occurred. 79 Fed. Reg. 45094 (Aug. 4, 2014).)

A valid service connection claim must include competent evidence of a current disability, which in this case would be a PTSD diagnosis in conformance with the DSM-IV PTSD diagnostic criteria.  See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); 38 C.F.R. § 3.304(f).The requirements of a current disability may be met by evidence of symptomatology at the time of filing or at any point during the pendency of the claim.  McClain v. Nicholson, 21 Vet. App. 319, 323 (2007).

If a stressor claimed by a veteran is related to a 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 a veteran's symptoms are related to the claimed stressor, provided that the claimed stressor is consistent with the places, types, and circumstances of a veteran's service, then the requirement for corroborating the stressor is eliminated.  See 38 C.F.R. § 3.304(f)(3).  "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.  Id.

The Veteran can attest to factual matters of which he has first-hand knowledge, such as experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a lay person is competent to identify the medical condition (noting that sometimes the lay person will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007).  In such cases, the Board is within its province to weigh that testimony and to make a determination as to whether the evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection.  See Barr v. Nicholson, 21. Vet. App. 303 (2007).

The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.

After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  See Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997); Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table).

In order to grant a claim of entitlement to service connection for an alleged disability, VA must examine the evidence and determine whether the claim is supported or the evidence for and against it is in relative equipoise, meaning about evenly balanced, with the claimant prevailing in either event, or whether instead a preponderance of the evidence is against the claim, in which case the claim must be denied.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.  See also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

Turning now to the facts of the case, there is a February 2009 VA new patient treatment note indicating that the Veteran had a positive PTSD screening.  He was referred for a mental health consultation as he exhibited some suicidal thoughts without intent or plan.  There is a March 2009 mental health treatment note in the VA treatment records.  It indicates diagnoses of PTSD and depression.  There is a separate March 2009 mental health consultation note that details PTSD and depression diagnoses.  This consultation was performed by a VA psychiatrist.  

The Veteran was given a VA examination in February 2012.  The examiner indicated that the claims file was reviewed.  A detailed history of the Veteran, including concerning occupational, educational, and mental health status, is included in the examination report.  The Veteran identified his stressor as taking part in the killing of an unarmed civilian in 2003.  The examiner indicated that this stressor was related to the fear of hostile military or terrorist activity and was adequate to support a PTSD diagnosis.  However, the examiner ultimately denied that the Veteran had a current PTSD diagnosis that conformed to the DSM-IV criteria or any other mental health diagnosis.   A global assessment of functioning (GAF) score of 75 was assigned.  Specifically, the Veteran did not exhibit three of the "Criterion C" avoidance traits; he only exhibited a restricted range of affect.  Elsewhere in the report, the examiner noted that the Veteran had difficulty with stable employment because of anger issues and disagreements with supervisors, but that he had held a steady job for the past year.  The Veteran reported separating from his wife for four months but they were back together.  He reported sleep issues, getting only five to six hours each night.  In conclusion, the examiner stated that there were some mild symptoms of sleep disturbance with nightmares and hypervigilance, but the Veteran did not meet the full criteria for a PTSD diagnosis, or that of any other mental health disorder.  

The threshold question is whether the Veteran currently has or has ever had the disability in question-PTSD.  See Brammer, 3 Vet. App. at 225; McClain, 21 Vet. App. at 323; 38 C.F.R. § 3.304(f).  The diagnosis of PTSD is a complex medical question.  The Veteran does not possess education or professional experience in mental healthcare.  The complex question of whether PTSD is present requires expertise in mental healthcare.  As the Veteran is not demonstrated to have such expertise, his reports are not competent and have no probative value to show a current PTSD diagnosis.  Jandreau, 492 F.3d at 1377.

Competent medical evidence is required to establish a PTSD diagnosis.  Woehlaert v. Nicholson, 21 Vet. App. 456 (2007); 38 C.F.R. § 3.304(f).  By "competent medical evidence" is meant in part that which is provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  38 C.F.R. § 3.159(a).  The Board may place greater weight on one medical professional's opinion over another's depending on such factors such as reasoning employed by the medical professionals, and whether or not and to what extent they review prior clinical records and other evidence.  Gabrielson v. Brown, 7 Vet. App. 36 (1994).

The evidence in support of the claim consists of the positive February 2009 PTSD screen and the March 2009 VA mental health records.  The PTSD screen was premised on a cursory review of the Veteran's symptoms and does not reflect detailed analysis in light of the DSM-IV PTSD diagnostic criteria by a qualified clinician.  It is not probative to establish a PTSD diagnosis.  Similarly, review of the March 2009 VA mental health assessments show that the treating clinician did not query the Veteran in detail about his current symptoms and did not explain how the Veteran's current symptoms met the DSM-IV PTSD diagnostic criteria.  Given the superficial nature of the March 2009 VA mental health consultation, the Board does not find it persuasive to show a current PTSD diagnosis. 

By contrast, the February 2012 VA examiner conducted a thorough review of the record and provided a medical explanation for why the Veteran's symptoms did not meet the DSM-IV PTSD criteria-specifically, the Veteran did not exhibit three or more of the necessary avoidance characteristics.  The February 2012 VA examiner's opinion is plausible and consistent with the additional evidence of record.  Caluza, 7 Vet. App. at 510-511.  The examiner considered and addressed the prior VA treatment records for PTSD and depression.  Consequently, the Board considers the February 2012 VA medical opinion to be highly probative evidence weighing against a current PTSD diagnosis.  Id. 

In summary, the Board finds the most probative competent medical evidence to weigh against a PTSD or other mental health diagnosis.  A current disability is not demonstrated.  Brammer, 3 Vet. App. at 225; McClain, 21 Vet. App. at 323; 38 C.F.R. § 3.304(f).  The preponderance of the evidence is against the Veteran's claim, and the benefit-of-the-doubt doctrine is therefore not helpful to the claimant.  38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App 49, 55-57 (1990). 







ORDER

Entitlement to service connection for PTSD is denied. 



____________________________________________
K. PARAKKAL
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs