Citation Nr: 1638577	
Decision Date: 09/29/16    Archive Date: 10/13/16

DOCKET NO. 15-21 966	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida
 

THE ISSUE

Entitlement to service connection for posttraumatic stress disorder (PTSD). 


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

T. Susco, Associate Counsel



INTRODUCTION

The Veteran served on active duty from July 1974 to March 1976. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. 

In the June 2015 substantive appeal (VA Form 9), the Veteran requested a Board videoconference hearing. However, in September 2016, the Veteran requested that the hearing be canceled and his appeal be forwarded for appellate review. As the Veteran did not subsequently submit a motion for a new hearing, the hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(e). 

This appeal was processed using both the "Virtual VA" system and the "Veterans Benefits Management System" paperless claims processing system. Accordingly, any future consideration of the Veteran's case should take into consideration the existence of this electronic record. 
 
This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDING OF FACT

The Veteran does not have a qualifying diagnosis of PTSD. 


CONCLUSION OF LAW

The criteria for service connection for PTSD are not met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2015). 

REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

VA has satisfied its duties under the Veteran's Claims Assistance Act of 2000 (VCAA) to notify and assist. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2015).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).

In two letters dated in February 2011, the RO provided notice to the Veteran prior to the initial adjudication of the claim in July 2012. The RO provided notice to the Veteran regarding what information and evidence is needed to substantiate the claim of service connection, as well as what information and evidence must be submitted by the Veteran, and what evidence VA would obtain. The February 2011 notice letters also addressed the rating criteria and effective date provisions that are pertinent to the Veteran's claim.

With regard to the duty to assist, VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file include service personnel records, post-service VA treatment records, a May 2015 VA examination report, and the Veteran's statements. 





The service records contained in the claims file are limited to service personnel records. In July 2012, the RO prepared a memorandum regarding an official finding of unavailability of the Veteran's service treatment records. Specifically, the RO found the service treatment records were unavailable for review, and that any further attempts to obtain such records would be futile. When service records are missing, there is a heightened duty on the Board to explain its findings and conclusions. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). However, case law does not establish a heightened "benefit of the doubt," only a heightened duty of the Board to consider the applicability of the benefit of the doubt, to assist the claimant in developing a claim, and to explain its decision when a veteran's medical records have been lost. Ussery v. Brown, 8 Vet. App. 64, 68 (1995). Similarly, case law does not lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all the evidence that may be favorable to a claimant. Russo v. Brown, 9 Vet. App. 46, 50-51 (1996).

The Veteran was afforded a VA examination in May 2015. 38 C.F.R. § 3.159(c)(4). When VA undertakes to provide an examination, it must ensure that the examination performed and opinions provided are adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The VA examination is adequate to adjudicate the appeal. The VA examiner considered all the pertinent evidence of record, to include the statements of the Veteran, and provided a sufficient rationale for the opinions provided. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination has been met. 38 C.F.R. § 3.159(c)(4). Monzingo v Shinseki, 26 Vet. App. 97 (2012) (holding that "examination reports are adequate when, as a whole, they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion" even when the rationale does not explicitly "lay out the examiner's journey from the facts to a conclusion").

VA has therefore satisfied its duties to notify and assist and the Board may proceed with appellate review.


Service Connection for PTSD

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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). 

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). "Congress specifically limits entitlement to service-connected disease or injury to cases where such incidents have resulted in a disability. In absence of proof a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992).

The Veteran contends that service connection is warranted for PTSD due to several in-service personal assaults. Service connection for PTSD specifically requires: 
(1) medical evidence diagnosing the condition in accordance with 38 C.F.R. 
§ 4.125(a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. § 3.304(f); 38 C.F.R. § 4.125(a). 

Effective August 4, 2014, VA amended the portion of its Schedule for Rating Disabilities dealing with mental disorders and its adjudication regulations that define the term "psychosis" to remove outdated references to the Fourth Edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) and replace them with references to the Fifth Edition (DSM-5). See 79 Fed. Reg. 149, 45094. The provisions of the interim final rule apply to all applications for benefits that are received by VA or that were pending before the AOJ on or after August 4, 2014. Id. VA adopted as final, without change, the interim final rule and clarified that the provisions of this final rule do not apply to claims that had been certified for appeal to the Board or were pending before the Board as of August 4, 2014. See 80 Fed. Reg. 53, 14308 (March 19, 2015). The RO certified the Veteran's appeal to the Board in July 2015, and therefore the claim of service connection is governed by DSM-5.

If a PTSD claim is based on an in-service personal assault, evidence from sources other than a veteran's service records may corroborate the veteran's account of the stressor incident. Gallegos v. Peake, 22 Vet. App. 329 (2008); see 38 C.F.R. § 3.304(f)(5). Examples of such evidence include, but are not limited to:  records from law enforcement authorities, mental health counseling centers, hospitals, or physicians; or statements from family members, roommates, fellow service members, or clergy. Evidence of behavioral changes following the claimed assault is one type of relevant evidence that may be found in these alternate sources. Examples of behavioral changes that may constitute credible evidence of a stressor include, but are not limited to:  request for transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavioral changes. 38 C.F.R. § 3.304(f)(5). In cases involving personal assault, the existence of a stressor in service does not have to be proven by the "preponderance of the evidence" because this would be inconsistent with the benefit of the doubt, or equipoise, doctrine contained in 38 U.S.C.A. § 5107(b). YR v. West, 11 Vet. App. 393, 399 (1998); Patton v. West, 12 Vet. App. 272, 279-280 (1999). 

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). 

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

After a review of all the lay and medical evidence, the preponderance of the evidence is against a finding that the Veteran has a qualifying diagnosis of PTSD. Therefore, the claim of service connection must be denied. 

VA treatment records dated as early as August 1996 reflect a provisional diagnosis of PTSD, and VA treatment records dated as early as July 2003 reflect a clinical diagnosis of PTSD. Between July 2003 and October 2003, the Veteran attended group counseling treatment sessions with an associated diagnosis of PTSD. VA treatment records during the appeal period also reflect a clinical diagnosis of PTSD. See e.g., April 2012 VA Mental Health Consultation Report; July 2012 VA Trauma Recovery Program Intake Evaluation; February 2015 VA Mental Health Outpatient Note. Upon psychological consultation in March 2015, the VA clinician provided DSM-5 diagnoses of PTSD "by history, unspecified depressive disorder by history," and alcohol and cannabis use disorder, "in remission by history." 

Following VA examination in May 2015, however, the VA examiner indicated that the Veteran did not meet the DSM-5 diagnostic criteria for any mental health disorder. The VA examiner specifically indicated that a "diagnosis is not possible without relying on mere speculation." The VA examiner noted an "objectively[-]assessed response bias" suggestive of symptom magnification and malingering. Following additional testing, the VA examiner indicated that "the degree of psychopathology [the Veteran] endorsed is unusual even in a clinical population [and] it is quite likely that there was some intentional exaggeration of the current symptom picture, possibly for secondary gain issues." 

The VA examiner noted a diagnosis of PTSD provided by the Veteran's treating mental health providers, but opined that "the VA medical records do not support the diagnosis." The VA examiner indicated that the diagnosis of PTSD was "conferred in a clinical context where different diagnostic guidelines apply, appears to have been based predominantly on [the Veteran's] subjectively reported symptoms, with no objective assessment of response style, and was therefore inapplicable to the current exam[ination]." The VA examiner added that "the validity of the Veteran's previous diagnosis of PTSD has not been adequately assessed and is therefore unknown." 

The VA examiner noted that the diagnosis of PTSD in the VA medical records was provided through the use of an unstructured interview. The VA examiner indicated, however, that "current research ... indicates that the use of a structured interview (e.g., CAPS [Clinician-Administered PTSD Scale]) is significantly and statistically superior in assessing for PTSD versus an unstructured interview." The VA examiner added that CAPS has been determined to be reliable and valid:  "the use of a measure like CAPS, which is the "gold standard" in assessing PTSD, significantly improves the ability of an examiner to accurately diagnose PTSD." The VA examiner utilized CAPS and found that "the results of the CAPS did not support the diagnosis of PTSD."

The VA examiner further explained that "when the observations and conclusions of mental health treatment providers are used to establish a diagnosis, [a] veteran presents his or her history and symptoms to the provider, who generally accepts the veracity of the account." The VA examiner indicated that treating clinicians rarely assess an individual's response style as that would probably diminish or destroy the trust between veteran and treatment provider. As the Veteran's treating clinicians did not appear to objectively assess the Veteran's response style, which the VA examiner indicated was unusual and indicative of symptom magnification, the VA examiner indicated that the clinical diagnosis of PTSD was unable to assess for validity. 

The VA examiner added that the diagnostic judgments of mental health treatment providers can be unreliable and not been shown to become more valid with increased exposure to the individual. Further, while the Veteran has received treatment associated with a diagnosis of PTSD, such treatment does not confirm a diagnosis of PTSD or render such diagnosis more valid. "In other words, the fact that the Veteran has received treatment associated with a diagnosis of PTSD for a significant period of time does not, in itself, render the diagnosis valid." 

Service connection for PTSD "requires medical evidence diagnosing the condition in accordance" with the criteria established in the DSM-5. 38 C.F.R. §§ 3.304(f), 4.125(a). The preponderance of the evidence, however, demonstrates that the Veteran does not have a qualifying diagnosis of PTSD. 

In cases where there are conflicting statements or opinions from medical professionals, it is within the Board's province to weigh the probative value of those opinions. See Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) ("The credibility and weight to be attached to these opinions [are] within the province of the adjudicators."). So long as the Board provides an adequate reason or basis for doing so, the Board does not err by favoring one competent medical opinion over another. See Owens v. Brown. 7 Vet. App. 429, 433 (1995). 

The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. See Sklar v. Brown, 5 Vet. App. 140 (1993). Greater weight may be placed on one examiner's opinion over another depending on factors such as reasoning employed by the examiner and whether or not, and the extent to which, the examiner reviewed prior clinical records and other evidence. Gabrielson, 7 Vet. App. at 40. Additionally, the thoroughness and detail of a medical opinion are among the factors for assessing the probative value of the opinion. See Prejean, 13 Vet. App. at 448-49. 

In review of the conflicting medical opinions, the Board finds the opinion of the VA examiner to be more probative that those provided by the Veteran's treating mental health clinicians. "Mental health professionals are experts and are presumed to know the DSM requirements applicable to their practice and to have taken them into account in providing a [] diagnosis." Cohen v. Brown, 10 Vet. App. 128, 140 (1997). However, while the Veteran's treating clinicians have provided a diagnosis of PTSD, the VA examiner has specifically contemplated these notations of a PTSD diagnosis and has reconciled those opinions with his own opinion of no qualifying diagnosis provided following the VA examination. 

Specifically, following a psychological interview with the Veteran and review of the entire medical record, the VA examiner indicated that results from CAPS, a standardized, reliable, and valid assessment tool, did not support a diagnosis of PTSD. In contrast, the VA examiner indicated that the assessment tools used by the VA clinicians, namely unstructured interview without objective assessments of response style, were less effective in accurately diagnosing PTSD. The VA examiner indicated that his opinion was supported by current medical research and specifically identified several medical research studies that supported his opinion. Accordingly, the Board finds the opinion provided by the VA examiner to be based upon a more complete review of the entire record with a thorough rationale supported by clinical research. Therefore, the Board affords the VA examiner's opinion more probative value that those of the Veteran's treating mental health care providers. 

The Board has carefully considered the Veteran's statements. The Veteran is competent to report subjective symptoms that he may experience at any time. See Layno, 6 Vet. App. 223, 225. However, without the appropriate psychological training and expertise, he is not competent to provide an opinion on a complex medical matter, such as relating symptoms to the specific diagnostic criteria outlined in the DSM-5. Jandreau, 492 F.3d 1372, 1377. In this regard, the VA examiner has specifically indicated that the Veteran's symptoms do not conform to the DSM-5 diagnostic criteria for any mental health diagnosis, to specifically include PTSD. The VA examiner's opinion is competent and probative medical evidence against the Veteran's claim, and outweighs the conflicting opinions provided by the Veteran's treating clinicians. 

The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. §§ 1110, 1131; see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997). Evidence must show that the Veteran has a qualifying diagnosis of PTSD for which benefits are claimed. The preponderance of the evidence, however, is against a finding of a current qualifying diagnosis of PTSD upon which to predicate a grant of service connection. As a result, the claim must fail. See Brammer, 3 Vet. App. at 225. As the preponderance of the evidence demonstrates no current qualifying diagnosis of PTSD, the Board does not reach the additional questions of an in-service stressor, or the relationship between any such current PTSD disability and service. 

The preponderance of the evidence is against the claim of service connection, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.


ORDER

Service connection for PTSD is denied. 



____________________________________________
VITO A. CLEMENTI 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs