Citation Nr: 1624387 Decision Date: 06/17/16 Archive Date: 06/29/16 DOCKET NO. 14-26 057 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for psychiatric disability, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Dworkin, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1966 to December 1969. He is a recipient of the Combat Action Ribbon. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of the record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Thus, the Board has characterized the issue on appeal to allow for consideration of any diagnosed psychiatric disability. FINDINGS OF FACT 1. The Veteran served in combat. 2. The Veteran does not have PTSD. 3. Psychiatric disability did not originate in service and is not otherwise etiologically related to service. CONCLUSION OF LAW The criteria for service connection for psychiatric disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 1154, 5102, 5103, 5103A, and 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2014); 38 C.F.R. § 3.159 (2015); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran received 38 U.S.C.A. § 5103(a)-compliant notice in July 2011 and November 2012. Thus, VA has satisfied the duty to notify the appellant and had satisfied that duty prior to the adjudication in the May 2014 statement of the case. The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, or other available evidence. VA has obtained examinations and adequate opinions with respect to the claim on appeal. In this regard, the Veteran contends that the opinions are inadequate because he believes the opinions did not consider his reports of flashbacks and nightmares in providing the opinion that his psychiatric disability was not related to service. The Board points out that the opinions specifically considered the symptoms of recurrent thoughts of Vietnam. As to the nightmares, the Veteran reported to the examiner that he was not even sure if he experienced nightmares; it was his wife who believed he might be experiencing those symptoms. In any event, the examiner obviously was aware of the possibility of nightmares. Therefore, the Board finds the VA examiner did consider these symptoms when providing an etiological opinion on the Veteran's psychiatric disability. In any event, the Veteran has not offered any explanation as to precisely how the purported failure of the opinions to address those complaints affected the accuracy of the opinions. The Board finds that the opinions are adequate, and that the Veteran's belief to the contrary is unsupported. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Veteran asserts that he has a psychiatric disability, to include PTSD and depression, that were caused by exposure to combat in the Republic of Vietnam during his active service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2015). That determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d) (2015). If there is no evidence of a chronic condition during service or an applicable presumptive period, then a showing of continuity of symptomatology after service may serve as an alternative method of establishing a service connection claim. 38 C.F.R. § 3.303(b) (2015). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was noted during service; (2) evidence of post-service continuity of the same symptomatology and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. If service connection is established by continuity of symptomatology, there must be medical evidence that relates a current condition to that symptomatology. Continuity of symptomatology applies only to those conditions explicitly recognized as chronic. 38 C.F.R. § 3.309(a) (2015); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection for PTSD requires: (1) medical evidence establishing a diagnosis of PTSD; (2) credible supporting evidence that the claimed in-service stressor occurred; and (3) a link established by medical evidence, between current symptoms and an in-service stressor. 38 C.F.R. § 3.304(f) (2015). The PTSD diagnosis must be made in accordance with the criteria of Diagnostic and Statistical Manual of Mental Disorders (DSM). The Veteran received a Combat Action Ribbon for engaging in combat with the enemy during service in Vietnam. Thus, he is a combat veteran and entitled to the application of the provisions of 38 U.S.C.A. § 1154(b) (West 2014). However, that statute does not create a statutory presumption that a combat Veteran's alleged disease or injury is service-connected. Rather, it aids the combat veteran by relaxing the adjudicative evidentiary requirements for determining what happened during service. That statute does not address the questions of either current disability or nexus to service, for both of which competent medical evidence is generally required. Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996); 38 C.F.R. § 3.304(d) (2015); Caluza v. Brown, 7 Vet. App. 498 (1995). A December 2012 VA examination report shows that the examiner reported that the Veteran did not meet the DSM criteria for PTSD. The examiner did find a diagnosis of a depressive disorder not otherwise specified to be applicable. The examiner reported that the Veteran reported mild symptoms of depression. The examiner reported that the Veteran related most of these symptoms to physical limitations that resulted from a lung condition. The Veteran reported that he still thought about Vietnam and that the memories had increased since he had stopped working and had more time on his hands. He reported that sometimes memories were unprompted but often times they would be triggered by war movies or the news. When the examiner asked the Veteran if he felt anxious remembering Vietnam, he reported that he did not but did report a feeling of unease. The Veteran also reported memories sometimes occurring at night. The examiner asked the Veteran about nightmares to which the Veteran reported he was not aware if he experienced them but that his wife thought he had nightmares due to moving around in his sleep. The examiner reported that the Veteran completed the Posttraumatic Stress Disorder checklist, which suggested that the Veteran did not meet the criteria for PTSD. The examiner noted that this finding was consistent with the findings from the clinical interview. The examiner also noted that testing revealed the Veteran had mild depression. The examiner reported that the Veteran did not meet the criteria for a diagnosis of PTSD because Criterion C was not met as the Veteran did not show a persistent avoidance of stimuli associated with the trauma and a numbing of general responsiveness. The examiner reported that the Veteran did not meet the full criteria for a current diagnosis of PTSD. While the Veteran reported experiencing recurrent thoughts and memories related to Vietnam he did not express intense distress related to those memories. The examiner also reported that the Veteran did meet the criteria for a diagnosis of a depressive disorder based on mild symptoms of depression but that most of those symptoms appeared to be the result of the physical limitations that resulted from the Veteran's non-service connected lung condition. A February 2013 VA examination addendum report shows that an examiner reviewed the Veteran's claims file and previous VA examination and opined that the Veteran's depressive symptoms were caused by his lung condition. The examiner noted that the Veteran had never related any of his depressive symptoms to his combat experiences in Vietnam. Therefore, the examiner determined that it was less likely than not that his depressive disorder was due to or a result of his active service. Initially, with respect to a current diagnosis of PTSD, the threshold consideration for any service connection claim is the existence of a current disability. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2015); Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223 (1992). In particular, aside from credible evidence of an in-service stressor, current medical evidence diagnosing PTSD in accordance with 38 C.F.R. § 4.125(a) is required, and competent evidence of a nexus between current PTSD and a verified in-service stressor. 38 C.F.R. § 3.304(f) (2015); Cohen v. Brown, 10 Vet. App. 128 (1997). In this case, there is no evidence that the Veteran was ever diagnosed with PTSD in accordance with 38 C.F.R. § 4.125(a) under the DSM. Most notably the December 2012 VA examiner specifically reported that the Veteran's symptoms did not meet the criteria for a PTSD diagnosis. Consequently, the Board finds that the criteria for service connection for PTSD are not met. The Board also notes that the Veteran has been diagnosed with a depressive disorder. The Board must consider whether service connection is warranted for that disability. Clemons v. Shinseki, 23 Vet. App. 1 (2009). In regards to the diagnosed psychiatric disorders other than PTSD, the Board notes that a Veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between active service and the disability. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546 (2000); Collaro v. West, 136 F.3d 1304 (Fed. Cir. 1998). With regards to psychiatric disorder other than PTSD, the Board notes that none of the evidence on file suggests the Veteran has been diagnosed with a psychosis. As to the diagnosed depressive disorder, the Board notes that the Veteran's service medical records are negative for complaints, findings, symptoms, or diagnosis of any psychiatric disability. Post-service evidence first shows an indication of psychiatric symptoms noted in a December 2010 VA treatment report that noted the Veteran may be referred to psychiatric care in the future. That time period of 40 years after discharge is a factor that tends to weigh against the Veteran's service connection claim. Additionally, the only medical opinion evidence of record weighs against the claim for service connection for a depressive disorder. The Board finds the December 2012 and February 2013 VA examiner's opinions constitute probative evidence on the medical nexus question, and on whether the Veteran meets the criteria for a diagnosis of PTSD, based on review of the Veteran's documented medical history and assertions. The VA examiner provided thorough discussions of the rationale for the opinions expressed. The Board may only rely on such opinion if it is supported by an explanation of the basis for such an opinion or if the basis is otherwise apparent in the Board's review of the evidence. Here, the Board finds that the opinions are supported by rationales that were provided after the VA examiners considered all procurable and assembled evidence. Significantly, neither the Veteran nor his representative have presented or identified a contrary medical opinion that supports the claim for service connection or refutes the VA examiners findings that the diagnosed depressive disorder was not related to service and that the Veteran does not meet the criteria for a diagnosis of PTSD. VA adjudicators are not free to ignore or disregard the medical conclusions of a VA physician, and are not permitted to substitute their own judgment on a medical matter. Colvin v. Derwinski, 1 Vet. App. 171 (1991). The Board has considered the Veteran's statements concerning the etiology of the claimed psychiatric disability. The Veteran is competent to report the onset of symptoms and the circumstances surrounding the onset of symptoms. However, the Board finds that the Veteran is not competent to offer an opinion on a complex medical matter, to include opining as to whether any diagnosed psychiatric disorder is related to service, or whether the Veteran meets the criteria for a diagnosis of PTSD. Those are medical findings that require medical training and expertise that the Veteran has not shown he possesses and cannot be made by a lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). The Board finds that the diagnosis and etiology of the claimed disability in this case is ultimately too complex a medical question to lend itself to the opinion of a layperson. In any event, even assuming the Veteran were competent to diagnose himself with psychiatric disorders and relate them to specific events in service, the Board finds that the probative value of his opinion would be outweighed by that of the medical opinions on file, which were rendered by someone who does have medical training, education and experience in diagnosing disorders and determining etiology. In summary, there is no credible and competent evidence of a psychiatric disability in service or that any currently present psychiatric disorder is related to service. The Board finds that the preponderance of the competent evidence of record is against a finding that any psychiatric disability is related to service or any event during service. As the preponderance of the evidence is against the claim, service connection for a psychiatric disability, to include PTSD and a depressive disorder, must be denied. 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2015); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for psychiatric disability to include PTSD, is denied. ____________________________________________ Thomas H. O'Shay Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs