Citation Nr: 1614979 Decision Date: 04/13/16 Archive Date: 04/26/16 DOCKET NO. 10-40 942 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for a psychiatric disability, to include depression and posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his sister ATTORNEY FOR THE BOARD C. Jones, Associate Counsel INTRODUCTION The Veteran had active military service from June 1979 to June 1983 and from July 1991 to April 1992. He also had service with the Army National Guard and the Marines Corps Reserve. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which determined that new and material evidence had not been received to reopen the claim of service connection for a psychiatric disability. The Veteran and his sister testified before the undersigned at a Board hearing in August 2011. A transcript of the hearing is of record. Thereafter, in a March 2013 decision, the Board reopened the claim of service connection for a psychiatric disability and remanded the issue for additional development. FINDING OF FACT The weight of the evidence is against a finding that the Veteran has had a valid psychiatric diagnosis at any time during the appeal period. CONCLUSION OF LAW The criteria for service connection for a psychiatric disability have not been met. 38 U.S.C.A. §§ 1110, 1116, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist Veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2015). VCAA requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. The VA's duty to notify was satisfied through letters dated in September 2009 and April 2008, which fully addressed all notice elements. See Dingess/Hartman. v. Nicholson, 19 Vet. App. 473 (2006). Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Service treatment records are associated with the claims file. As requested in the Board's March 2013 remand directives, outstanding post-service treatment records were retrieved. Efforts were also made to obtain Social Security Administration (SSA) records, however, in correspondence received in March 2013, it was reported that the medical records had been destroyed and that further efforts to locate them would be futile. The Veteran has not identified any additional records that should be obtained prior to a Board decision. Therefore, VA's duty to further assist the Veteran in locating additional records has been satisfied. Pursuant to the Board's remand, the Veteran was afforded a VA examination in May 2013 and an addendum opinion was obtained in August 2013. The VA examination and addendum opinion are adequate for the purposes of the instant matter adjudicated herein, as they involved a review of the Veteran's pertinent medical history as well as a clinical evaluation of the Veteran, and provided an etiological opinion with supporting rationale. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Thereafter, the RO issued a supplemental statement of the case in August 2013. The Board finds that there has been substantial compliance with the previous remand directives with regards to the issue adjudicated herein. See D'Aries v. Peake, 22 Vet. App. 97, 106 (2008); Stegall v. West, 11 Vet. App. 268 (1998). Additionally, the United States Court of Appeals for Veterans Claims (Court) has held that that provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). At the August 2011 Board hearing, the Veteran was made aware of the issue before the Board. Further, the undersigned asked questions designed to elicit relevant testimony that would help substantiate the claim and sought to ensure that all relevant records were included in the claims file. In light of these factors, the Board finds the duties imposed by Bryant have been met. In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. Legal Criteria Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) 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); 38 C.F.R. § 3.303. Establishing service connection for PTSD requires: (1) medical evidence diagnosing PTSD; (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). A diagnosis of PTSD must be established in accordance with 38 C.F.R. § 4.125(a), which simply mandates that, for VA purposes, all mental disorder diagnoses must conform to the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-V). See 38 C.F.R. § 3.304(f). If the evidence establishes that the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(1). See also 38 U.S.C.A. § 1154(b). Where the veteran asserts entitlement to a chronic disease but there is insufficient evidence of a diagnosis in service, service connection may be established under 38 C.F.R. § 3.303(b) by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In the absence of proof of present disability, there can be no valid claim of service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). 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. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Factual Background The Veteran asserts that he suffers from a psychiatric disability due to military service. Specifically regarding in-service stressors, he claims to have witnessed helicopter crashes while serving at Palms, California in June 1980. This does not implicate the relaxed provisions of 38 C.F.R. § 3.304(f) and thus must be corroborated. Here, relevant records were reviewed and these were negative for any crashes during the time period cited by the Veteran. Accordingly, this stressor is not accepted as fact and cannot be the basis for an award of service connection. Service treatment records are negative for treatment for or a diagnosis of a psychiatric condition. Notably, for the appellant's first period of military service, the June 1979 entrance and the May 1983 separation examinations are negative for a diagnosis of a psychiatric disorder. In a July 1991 report of medical history for the appellant's second period of active military service, he denied depression or excessive worry. The Veteran again denied depression or excessive worry after his second period of active military service in an April 1992 report of medical history. Post-service VA treatment records demonstrate a history of treatment for psychiatric conditions, to include PTSD and depression, and alcohol abuse. In testimony provided during the August 2011 Board hearing, the Veteran stated that he did not have any mental issues prior to military service. He also reported that he noticed a change his behavior during his second period of service, however, he did not seek medical treatment at that time. The appellant's sister stated that she noticed changes in his behavior after he returned from the Gulf War. The report from a June 2012 private psychiatric evaluation is of record. The physician opined that the Veteran was not a good historian. He noted that the appellant was provided with self-reporting questionnaires, which allowed him to focus on psychiatric symptoms as they related to psychiatric diagnosis. The questionnaires were reviewed during the one-on-one interview. The Veteran reported that he had difficulty completing the paperwork so he was assisted by a friend and the physician. The physician diagnosed PTSD, exposure to combat in the Persian Gulf associated with anxiety and depression. The Veteran was afforded a VA examination in May 2013. At the time of the examination, the Veteran reported that he started drinking when he was 16 years old and now drank 2 beers per day. He reported drinking up to 1 pint per day in the past and had withdrawal symptoms such as shaking. The examiner noted that the Veteran had been hospitalized a number of times for alcohol dependence. Following examination of the appellant, the examiner determined that he did not meet the criteria for PTSD. Alcohol dependence was diagnosed. She noted that the appellant had a long history of alcohol use since the age of 16, several episodes of alcohol intoxication leading to hospitalizations, a history of withdrawal symptoms, and attempts to stop drinking. Therefore, he met the criteria of alcohol dependence. The examiner also determined that the complaints of depression and anxiety were secondary to the appellant's substance abuse, although they were not found on examination. She opined that if depression and anxiety were present, they were mild or transient. The examiner also mentioned that the Veteran had a prior diagnosis of cognitive disorder, but on examination, no memory problems were noted. Following the May 2013 VA examination, VA treatment records dated from June 1985 to May 1989 were associated with the claims file. Notably, records dated in June 1985 demonstrated a diagnosis of personality vulnerability and a record dated in July 1985 revealed a diagnosis of impulsive personality disorder. An addendum opinion was obtained in August 2013. The examiner opined that it was less likely than not that the Veteran's mental health condition, to include depression and PTSD, were incurred in or caused or aggravated by his military service. He noted that a comprehensive medical review of the clinical files, new materials, and CAPRI were the foundation for his independent medical opinion. In support of the examiner's finding, he noted that at the May 2013 VA examination, the Veteran was diagnosed with alcohol dependence. The examining physician did not find clinical evidence for diagnoses of depression and PTSD. Although the appellant complained of depression and anxiety, on mental status evaluation at the May 2013 VA examination, he was smiling, laughing, joking, and did not have any objective signs of depression or anxiety. He noted that pursuant to the May 2013 examination report, there was no mental disorder that best summarized the appellant's level of social and occupational impairment. Further, the Veteran's experiences did not meet the full DSM-IV criteria for witnessed or was confronted with an event that involved actual or threatened death or serious injury or a threat the physical integrity of self or others. (Again, the stressor involving the helicopter crash is uncorroborated). Additionally, his responses did not involve intense fear, helplessness, or horror. He had no exposure to a traumatic event. Therefore, it was less likely than not that the medical evidence received after the May 2013 VA examination supported the appellant's claim of service connection for a mental condition. The examiner also noted that the Veteran had a long past medical history of alcohol abuse and that the in-service separation examinations were silent on the use of alcohol, depression, and/or clinical signs and symptoms of PTSD. Analysis After a review of the evidence, the Board finds that the Veteran does not have a valid diagnosed psychiatric disorder nor has such condition existed at any time during the appeal period, therefore, service connection is not warranted. In this regard, the May 2013 and August 2013 VA examiners did not find that a diagnosis of PTSD or any other psychiatric disorder was appropriate. Instead, the examiner's diagnosed alcohol dependence. The Board notes that service connection for alcohol dependence may not be granted on a direct basis as a matter of law. See 38 U.S.C.A. § 105; 38 C.F.R. §§ 3.1(n), 3.301(c). Moreover, there is no indication that the alcohol abuse is secondary to a service-connected disability. Id. The Board acknowledges the conflicting opinions regarding whether the Veteran has a diagnosed psychiatric disability. The Board has taken all medical opinions of record into consideration and finds the May 2013 and August 2013 VA examiner's opinions more probative than the June 2012 private physician's opinion. In so finding, the May 2013 VA examiner reviewed the claims file, interviewed the Veteran, and conducted a comprehensive mental status examination. Her opinion was based upon clinical evaluation and review of the record, which included consideration of the Veteran's personal and military history. In addition to the foregoing, the Board finds persuasive the VA examiner's explanation of the Veteran's symptoms and situation, which provided the basis and rationale for finding that the Veteran did not meet the criteria for a PTSD diagnosis or any other psychiatric disorder. The August 2013 examiner's addendum opinion was based on review of the additional medical records and review of the findings of the May 2013 VA examiner. Both examination reports contain detailed rationale for the medical conclusions. See Boggs v. West, 11 Vet. App. 334 (1998). Conversely, the June 2012 private physician diagnosed PTSD. However, there is no indication that the physician reviewed the claims file prior to making his determination. Moreover, he did not provide a rationale to support his finding. As such, the private physician's diagnosis is deemed to be outweighed by the later and more comprehensive VA opinions finding no psychiatric disorder. See Prejean v. West, 13 Vet. App. 444 (2000). In sum, for the reasons discussed above, the weight of the evidence is against a finding that the Veteran has a validly diagnosed psychiatric disorder. Service connection may not be granted where there is no present disability shown. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Therefore, as the preponderance of the evidence is against service connection, the reasonable doubt does not arise, and the Veteran's claim must be denied. 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for a psychiatric disability, to include depression and posttraumatic stress disorder (PTSD) is denied. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs