Citation Nr: 1621022	
Decision Date: 05/24/16    Archive Date: 06/02/16

DOCKET NO.  10-27 355	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska


THE ISSUE

Entitlement to service connection for an acquired psychiatric disorder, claimed as post-traumatic stress disorder (PTSD).


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

L. S. Kyle, Associate Counsel



INTRODUCTION

The Veteran served on active duty from November 1966 to October 1968.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska.

This matter was previously before the Board in March 2015, when it was remanded for further development.  At that time, the issue on appeal was recharacterized in accordance with Clemons v Shinseki, 23 Vet. App. 1 (2009) to include any psychiatric disorder that is reasonable encompassed by the Veteran's reported symptomatology.


FINDINGS OF FACT

The Veteran's reported stressor has not been verified, and the preponderance of evidence shows he has not had an acquired psychiatric disorder that conforms to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-V) criteria during the appeal period for which direct service connection can be granted. 


CONCLUSION OF LAW

The criteria for entitlement to service connection for an acquired psychiatric disorder have not been met.  38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.125 (2015).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Due Process

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations require VA to provide claimants with notice and assistance in substantiating a claim.  See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015).  VA provided adequate notice in a letter mailed to the Veteran in July 2009.

VA has also satisfied its duty to assist.  This duty includes assisting with the procurement of pertinent treatment records and providing an examination when necessary.  38 C.F.R. § 3.159.  All pertinent, identified medical records have been obtained and considered regarding this claim.  VA provided an examination in May 2015.  The May 2015 examiner considered a full medical history, including the Veteran's lay statements regarding events in service, and provided an adequate rationale to support his opinion that the Veteran does not have a current diagnosis for a psychiatric disorder.  The Agency of Original Jurisdiction (AOJ) also took substantial steps to verify the Veteran's reported stressor.  Yet, the Veteran subsequently reported this event was not reported to civilian or military authorities; therefore, the Board finds further efforts to verify this event are unnecessary.

There has also been substantial compliance with the Board's prior remand directives.  See Stegall v. West, 11 Vet. App. 268 (1998).  In March 2015, the Board remanded this matter for further development.  The Board directed the AOJ to obtain outstanding VA treatment records and to schedule a VA examination.  VA treatment records were added to the claims file in April 2015.  As previously noted, VA provided an adequate examination in May 2015.

As there is no indication that any additional notice or assistance could aid in substantiating this claim, VA has satisfied its duties under the VCAA and proceeds with consideration of the Veteran's appeal.  38 U.S.C.A. § 5103A(a)(2); Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007).

II.  Merits

Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).

Service connection requires evidence showing:  (1) the existence of a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Service connection for PTSD generally 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 Cohen v. Brown, 10 Vet. App. 128, 139-43 (1997); 38 C.F.R. § 3.304(f).

When there is an approximate balance of positive and negative evidence regarding any material issue, reasonable doubt will be resolved in favor of the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.

Here, a May 2015 VA examiner determined the Veteran does not have a current diagnosis for an acquired psychiatric disorder under the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-V) criteria after clinical examination and consideration of the Veteran's full medical history.  Specifically, the May 2015 examiner explained the Veteran's reported symptomatology does not meet all of the criteria for a PTSD diagnosis under the DSM-V criteria.  The May 2015 examiner acknowledged the Veteran was admitted for VA in-patient PTSD treatment, but noted the Veteran was admitted into the program even though a January 2009 intake assessment revealed sub-threshold PTSD symptoms.  The May 2015 examiner also noted the Veteran's reports of depression are not sufficient to establish a diagnosis for depressive disorder under the DSM-V criteria.

The May 2015 examination report includes a detailed recitation of the Veteran's reported stressor, an event in which he was a passenger in an automobile that ran over a civilian.  The AOJ has taken substantial steps to verify this stressor, but has been unsuccessful.  During the May 2015examination, the Veteran explained the driver of the automobile, another service member, was intoxicated while driving and encouraged the Veteran not to report the incident.  Thus, the Board finds further efforts to verify this event would be futile because it was not reported to civilian or military authorities.  As the Veteran's alleged stressor is not related to combat, the fear of hostile military or terrorist activity, or an in-service personal assault, the record must contain credible supporting evidence that corroborates his testimony or statements.  38 C.F.R. § 3.304(f); Stone v. Nicholson, 480 F.3d 1111 (Fed. Cir. 2007); Cohen, 10 Vet. App. at 139-42.  The record does not contain any corroborating evidence regarding this incident.  Thus, the Board finds the Veteran's statements regarding this incident are insufficient to support a service connection claim for PTSD standing alone.

The May 2015 examiner also considered the Veteran's full medical history and addressed past diagnoses in the record.  See Romanowsky v. Shinseki, 26 Vet. App. 289, 293-94 (2013).  The May 2015 examiner explained the PTSD diagnoses in the record are included in group treatment records after the Veteran was admitted into VA in-patient PTSD treatment with sub-threshold PTSD symptoms.  The VA psychologist who prepared the January 2009 intake assessment that led to the Veteran's admittance into in-patient therapy was explicit in noting the Veteran did not meet the full criteria for PTSD at that time.  As the January 2009 and May 2015 reports are the most detailed diagnostic reports available, the Board finds the preponderance of evidence is against a finding that the Veteran has had an acquired psychiatric disorder during the appeal period.

In so much as the Veteran has been diagnosed as having a substance abuse disorder (amphetamine dependence), VA's General Counsel has determined that direct service connection for disability that is a result of a claimant's abuse of alcohol or drugs is precluded for claims filed after October 31, 1990.  See VAOPGCPREC 7-99 (Jun. 9, 1999); VAOPGCPREC 2-98 (Feb. 10, 1998).  Therefore, the Board has not considered this diagnosis in its analysis of the Veteran's claim.

Ultimately, the preponderance of evidence is against a finding that the Veteran has an acquired psychiatric disorder as a result of active service.  There is no corroborating evidence regarding his reported in-service stressor, and his testimony standing alone is insufficient to establish the occurrence of this event.  The May 2015 examiner determined he does not have a diagnosis for any acquired psychiatric disorder under the DSM-V criteria.  Thus, the benefit-of-the-doubt doctrine does not apply, and the Veteran's claim for service connection for an acquired psychiatric disorder must be denied.  See Gilbert v. Derwinski, 1 Vet. App 49 (1990).


ORDER

Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is denied.



____________________________________________
JAMES G. REINHART
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs