Citation Nr: 1639648 Decision Date: 09/30/16 Archive Date: 10/13/16 DOCKET NO. 09-24 416 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado THE ISSUE Entitlement to service connection for an acquired psychiatric disability, to include post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Mary C. Suffoletta, Counsel INTRODUCTION The Veteran served on active duty from October 1968 to April 1972. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision that denied service connection for PTSD. The Veteran timely appealed. In July 2015, the Veteran testified during a hearing before the undersigned at the RO. Following the hearing, the Veteran submitted additional evidence and waived initial consideration of the evidence by the RO. In November 2015, the Board remanded the matter for additional development. The Board notes that the U.S. Court of Appeals for Veterans Claims has held that the Board must broadly construe claims, and consider other diagnoses for service connection when the medical record so reflects. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Accordingly, because the Veteran claimed service connection for PTSD and had been diagnosed with depression, which involves overlapping symptomatology, the issue on the title page reflects the expanded issue on appeal as a result of the Clemons decision. FINDINGS OF FACT 1. The Veteran does not have a diagnosis of PTSD that conforms to regulatory requirements. 2. A currently diagnosed depressive disorder was not manifested during active service and is not attributed to service, and is not related (causation or aggravation) to a service-connected disease or injury. CONCLUSION OF LAW An acquired psychiatric disability, to include PTSD, was not incurred in or aggravated by active service; and is not proximately due to or a result of, or aggravated by, a service-connected disease or injury. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist VA has a duty to notify and assist claimants 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, 3.326(a) (2015). VA's duty to notify was satisfied by a September 2007 letter. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Veteran's claim on appeal has been fully developed and re-adjudicated by an agency of original jurisdiction after notice was provided. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board concludes that VA's duty to assist has been satisfied. All available records identified by the Veteran as relating to his claim have been obtained, to the extent possible. The RO or VA's Appeals Management Center (AMC) has obtained the Veteran's service treatment records and outpatient treatment records, and has arranged for VA examinations in connection with the claim on appeal, reports of which are of record and appear adequate. The opinions expressed therein are predicated on a substantial review of the record and consideration of the Veteran's complaints and symptoms. The Veteran has not identified, and the record does not otherwise indicate, any existing pertinent evidence that has not been obtained. During the hearing the undersigned clarified the issues, explained the concept of service connection, and helped to identify any pertinent evidence that was outstanding that might substantiate the claim. The case was thereafter remanded for additional development, including examination. The actions of the undersigned supplement VA's duties and comply with 38 C.F.R. § 3.103. Given these facts, it appears that all available records have been obtained. There is no further assistance that would be reasonably likely to assist the Veteran in substantiating the claim. 38 U.S.C.A. § 5103A(a)(2). II. Analysis Service connection is awarded for disability that is the result of a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. Id. The Federal Circuit has held that section 3.303(b) applies only to those chronic conditions specifically listed in 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Notably, psychosis is considered chronic under section 3.309. Additionally, certain chronic diseases-including psychosis-may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In this case the Veteran contends that an acquired psychiatric disability, to include PTSD, had its onset in active service. His personnel records reflect that he served aboard two different LST Navy ships in the official waters of Vietnam, which docked or landed on shore and the crews went ashore numerous times. As for service connection on a direct basis, his service treatment records show that the Veteran checked "no" in response to whether he ever had or now had nervous trouble of any sort or depression or excessive worry, on a "Report of Medical History" completed in October 1967 prior to entry. A psychiatric examination in December 1968 revealed that the Veteran was found fit for training and duty in submarines. Clinical evaluation at the time of the Veteran's separation examination in March 1972 showed a normal psychiatric system. Navy Reserve records also show that the Veteran checked "no" in response to whether he ever had or now had nervous trouble of any sort or depression or excessive worry, on reports of medical history completed in April 1972, May 1973, July 1974, April 1975, May 1978, April 1987, and December 1987. Here, the Board finds that the evidence is against a finding that an acquired psychiatric disability was incurred in active service or within the first year after separation. In Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006), the Federal Circuit Court indicated that, where lay evidence provided is competent and credible, the absence of contemporaneous medical documentation during service or since, such as in treatment records, does not preclude further evaluation as to the etiology of the claimed disorder. And the Veteran, even as a layman, is competent to proclaim that he experienced depressive symptoms during active service. Here, the Veteran is competent to report what occurred in service because his statements regard his first-hand knowledge of a factual matter. However, competency is only one criterion. The lay evidence must also be credible. The Board finds that his statements are not credible with respect to onset or ongoing symptoms. Again, the Veteran checked "no" in response to whether he ever had or now had nervous trouble of any sort or depression or excessive worry in examinations dated in 1972, 1973, 1974, 1975, 1978, and in 1987. Thus, it is not the absence of records, but rather the fact that the Veteran specifically denied such symptoms through the years that the Board finds probative. With regard to PTSD, VA records show that the Veteran presented to a mental health clinic in February 2007 with symptoms of depression and possible PTSD. Records show that he began group therapy sessions, and was diagnosed with both major depression and PTSD by a VA nurse practitioner in April 2007. The report of an April 2007 VA general examination also noted an interim history of chronic low-grade depression. The remaining evidence is against the Veteran's claim. The report of an October 2011 VA examination reflects that the Veteran's symptoms do not meet the diagnostic criteria for PTSD under the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed.) (1994) (DSM-IV) criteria. Rather, the October 2011 examiner diagnosed depressive disorder, not otherwise specified; and diagnosed a personality disorder unrelated to active service and most likely caused by childhood development. The Veteran had described feeling occasional anxiety around things that he could not control, and described some nightmares about various events. The October 2011 examiner indicated that the Veteran currently had impairment in social or occupational functioning due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, and that his symptoms were controllable by medication. The October 2011 examiner also opined that the Veteran's depressive disorder was less likely related to experiences in active service in Vietnam waters. Specifically, the Veteran had described three in-service stressors while aboard ships in Vietnam waters. He reported that while taking supplies from Da Nang to the demilitarized zone, the ship pulled onto a ramp and was shelled; the ship had to back out, and no one was hurt. On another occasion, the ship was beached and offloaded, and could not move until the tide came in; the crew kept the lights on during the night, and tossed grenades overboard to prevent attacks. The Veteran also described fearing death under heavy weather due to storm, when waves went over the mast and his bearings were lost "under shaft;" although no injuries were reported, there were cracks in the ship's deck. The Board notes that the Veteran's personnel records show that he was awarded special pay in December 1969 due to hostile fire; and was awarded the Vietnam Campaign Medal with Device in October 1970, and the Vietnam Service Medal Campaign Stars in March 1971. The Veteran also submitted a buddy statement in August 2015 from a former crewman who remembered the shelling attack aboard ship, and indicated that a Destroyer had to come to their aid and provided covering fire until the ship was able to get out of range. In this case, the Board finds credible, competent and probative the Veteran's reports of experiencing events aboard ships in Vietnam waters during active service. The in-service events are consistent with the places, types, and circumstances of the Veteran's service. At least two of the in-service stressors described by the Veteran aboard ships involved his fear of hostile military or terrorist activity, and the other stressor involved his surviving under heavy weather due to storm. Moreover, VA amended its regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing in-service stressors. 75 Fed. Reg. 39843 (July 13, 2010). The primary effect of the amendment of 38 C.F.R. § 3.304(f) is the elimination of the requirement for corroborating evidence of a claimed in-service stressor if it is related to the Veteran's fear of hostile military or terrorist activity. In place of corroborating any reported stressor, a medical opinion must instead be obtained from a VA, or a VA-contracted, psychiatrist or psychologist. In this regard, a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, must confirm that the claimed stressor is adequate to support a diagnosis of PTSD; and must confirm that the Veteran's symptoms are related to the claimed stressor. Here, the October 2011 examiner, who is a VA physician, found that the Veteran's in-service events are not adequate to support a diagnosis of PTSD; and opined that the Veteran's current symptoms do not meet full criteria for PTSD under DSM-IV. The report of a September 2014 VA examination includes a diagnosis of unspecified depressive disorder under DSM-5. The examiner, who is a VA physician, also opined that the depressive disorder had its onset in childhood and had worsened at this time because the Veteran felt useless and was no longer employed. The Veteran had not been on psychotropic medications; his symptoms included depressed mood. The Veteran reported being unhappy since he was a child. He reported being over six feet tall at age 10 or 12, and reportedly he "never really felt included anywhere he has gone." He reportedly was not happy about most things because he was a loner. He also felt more depressed because he was no longer employed and did not feel useful. The examiner opined that the Veteran's depression was longstanding and not caused by or a result of his service-connected prostate cancer or his service-connected erectile dysfunction. Lastly, 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 Diagnostic and Statistical Manual of Mental Disorders (DSM) and replace them with references to the recently updated Fifth Edition (DSM-5). 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. The provisions of this interim final rule do not apply to claims that have been certified for appeal to the Board or are pending before the Board, such as this case. Here, the RO certified the Veteran's appeal to the Board in August 2010 and, therefore, the claim is governed by DSM-IV. In July 2015, the Veteran testified that he first sought counseling in 1975 when he was having problems with his first marriage, which ended in divorce. He testified to having problems with extreme anger, and that his bad temper over the years had cost him at least two jobs. He testified that he probably saw ten counselors over the decades, but that he neither recalled any of those counselors nor did he have any records. Following the Board's November 2015 remand, the Veteran underwent a VA examination in February 2016 for purposes of determining the nature and etiology of his current psychiatric disability. The examiner reviewed the claims file (electronic) and noted the Veteran's medical history. The examiner noted that the Veteran has been undergoing individual therapy since August 2015, and carried a diagnosis of an adjustment disorder with depressed mood. Records reflect that the content of the sessions related to lack of fulfillment and passion in life, poor adjustment to unemployment, and coping with his wife's cancer. The February 2016 examiner diagnosed the Veteran with depressive disorder, not otherwise specified; and opined that it was less likely than not (less than 50 percent probability) that the Veteran has a diagnosis of PTSD under DSM-IV or DSM-5 criteria. In support of the opinion, the examiner noted that current symptoms did not meet full criteria for the "avoidance cluster" under DSM-IV. The Veteran's self-report in March 2014 was sub-clinical for PTSD under DSM-IV due to failure to meet criteria for Criterion B (re-experiencing) and Criterion C (avoidance). The examiner also noted that the Veteran's negative emotions and beliefs about others appear to be associated with his depression and personality characteristics. In this case, the February 2016 examiner, who is a VA clinical psychologist, considered the diagnostic criteria for PTSD under DSM-IV; and opined that the Veteran did not meet the full diagnostic criteria for PTSD. In essence, the Veteran's PTSD symptoms have not caused impairment in social, occupational, or other important areas of functioning. The February 2016 examiner's opinion is entitled to greater probative weight than the nurse practitioner's opinion and the Veteran's lay statements on the matter, as the February 2016 examiner reviewed the pertinent history to include the service treatment records and post-service treatment records, conducted a physical examination, and provided an opinion with underlying reasons for the conclusions that is not contradicted by the record. Likewise, the Veteran had reported some depressive symptoms; and the February 2016 examiner opined that the Veteran did meet the criteria for an unspecified depressive disorder. In this regard, the February 2016 examiner opined that the Veteran's unspecified depressive disorder is less likely than not (less than 50 percent probability) caused by, related to, or aggravated by his active service, including the in-service events. In support of the opinion, the examiner reasoned that the Veteran's history reflects periods of depressed mood in association with various stressors as they arose in his life. The examiner explained that the life-threatening military events elicited great fear and terror, and may have caused a temporary worsening of his symptoms due to their stressful nature. The events, however, were unlikely to have changed the course of his depressive symptomatology; the events that affected him most were those that threatened his sense of self or his relatedness with others-e.g., his retirement and the loss of his marriage. The in-service events were not of a personal or interpersonal nature. The examiner also noted that the Veteran did not describe a depressive episode emerging in the aftermath of his return from deployment, and his service treatment records do not reflect any mental health problems or symptoms. Lastly, the examiner indicated that there is inadequate evidence to suggest that the Veteran's military experiences aggravated his depression beyond its natural progression to any significant degree. Moreover, the February 2016 examiner opined that it is less likely than not (less than 50 percent probability) that the Veteran's unspecified depressive disorder was caused or aggravated by his service-connected disabilities (prostate cancer, erectile dysfunction, bilateral hearing loss). In support of the opinion, the February 2016 examiner reasoned that the Veteran's depression was problematic long before his diagnosis of prostate cancer or his development of erectile dysfunction. While noting that the service-connected disabilities do impact the Veteran's daily life, and his hearing loss leads to frustration in conversation, there has been no discernible increase in his level of depressive symptomatology. His level of depression has been fairly stable through the years. The Veteran has not had a psychiatric decompensation or hospitalization, and has continued in individual psychotherapy with some but not full benefit. The February 2016 examiner affirmed the September 2014 examiner's opinion. When assessing the probative value of a medical opinion, the thoroughness and detail of the opinion must be considered. The opinion is considered probative if it is definitive and supported by detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). A medical opinion that contains only data and conclusions is not entitled to any weight. "It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion." See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). As noted above, the Board finds credible, competent and probative the Veteran's reports of experiencing events during active service. However, the Board finds that the report of the February 2016 VA examination is more probative, given that it was conducted by a licensed psychologist, and provides a sound rationale for the finding that the Veteran's current unspecified depressive disorder is not at least as likely as not related to events during active service. This is highly probative evidence against finding a nexus between any present psychiatric disability and active service. The Board finds the February 2016 examiner's opinion to be probative for resolving the matter on appeal. Here, the examiner has the medical knowledge to express a competent opinion; and found no evidence of any relationship between a current psychiatric disability and active service. The opinion appears accurate, and is fully articulated and contains sound reasoning. Lastly, there is some report of pre-service impairment. However, there is no contemporaneous evidence of a pre-existing psychiatric disorder, no evidence of a psychiatric disorder at entrance, and no credible evidence of a psychiatric disorder during service or at separation. In fact, the Veteran repeatedly denied pertinent manifestations during the critical timeframe. Here, the presumption of soundness is not implicated. Gilbert v. Shenseki, 26 Vet. App. 48 (2012). In this case, the evidence weighs against a finding that the Veteran has a current unspecified depressive disorder linked to service. The evidence is therefore against a finding that the Veteran's psychiatric disability either had its onset during active service or is related to the in-service events reported by the Veteran. The reasonable doubt doctrine is not for application. Thus, service connection for an acquired psychiatric disability, to include PTSD, is not warranted. See 38 U.S.C.A. § 5107(b) (West 2014). ORDER Service connection for an acquired psychiatric disability, to include PTSD, is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs