Citation Nr: 1645714 Decision Date: 12/07/16 Archive Date: 12/19/16 DOCKET NO. 11-02 689A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for an acquired psychiatric disorder other than PTSD, to include anxiety disorder, major depressive disorder, and adjustment disorder. REPRESENTATION Appellant represented by: American Legion ATTORNEY FOR THE BOARD C.S. De Leo, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1968 to April 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania, which inter alia, denied entitlement to service connection for PTSD, anxiety disorder, and depression. In July 2010, the Veteran filed a notice of disagreement (NOD) with the determination. A statement of the case (SOC) was issued in January 2011 and the Veteran perfected a substantive appeal (via a VA Form 9, Appeal to Board of Veterans' Appeals) in February 2011. Thereafter, the RO continued the denial of each issue in a December 2012 supplementary SOC (SSOC)). Jurisdiction was subsequently transferred to the RO located in Huntington, West Virginia. In his February 2011 VA Form 9, the Veteran requested a videoconference hearing. He was scheduled for a videoconference hearing in August 2016. However, in an April 2011 statement, the Veteran requested to withdraw the request for hearing. See April 2011 VA Form 21-4138. As such, the Veteran's hearing request is deemed withdrawn. 38 C.F.R. § 20.704(d). A February 2007 VA initial psychological assessment, conducted by a psychologist, reflects the Veteran was diagnosed with adjustment disorder and depressed mood. The claim for service connection for a psychiatric disability has been recharacterized in light of Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (what constitutes a claim cannot be limited by a lay veteran's assertion of his condition in the application, but must be construed based on the reasonable expectations of the non-expert claimant and the evidence developed in processing the claim). Given the different dispositions below, the Board has bifurcated the claim as indicated on the title page. The issue of entitlement to service connection for an acquired psychiatric disorder other than PTSD, to include, anxiety disorder, major depressive disorder, and adjustment disorder are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The preponderance of the evidence reflects that the Veteran has not had PTSD during the pendency of his claim or prior thereto. CONCLUSION OF LAW PTSD was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act The Veterans Clams Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159; Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93. The requirements of the statutes and regulation have been met in this case. VA provided pre-adjudication notice to the Veteran in April 2009 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence he was to provide, what part VA would attempt to obtain, and how disability ratings and effective dates are determined. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and affording the Veteran a July 2009 VA examination. For the reasons indicated below, that examination is adequate. There is no evidence that additional records have yet to be requested, or that additional examinations are in order. The Board will therefore proceed to the merits of the claim for service connection for PTSD. Analysis 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; 38 C.F.R. § 3.303 (a). Service connection for PTSD 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. 38 C.F.R. § 3.304 (f). 38 C.F.R. § 4.125 (a) provides that, if the diagnosis of a mental disorder does not conform to the DSM-IV or is not supported by the findings on an examination report, the report must be returned to the examiner to substantiate the diagnosis. VA has amended 38 C.F.R. § 4.125 (a) to require the diagnosis to conform to DSM-5, but this amendment does not apply to cases such as this one that were certified to the Board prior to August 4, 2014. See Schedule for Rating Disabilities-Mental Disorders and Definition of Psychosis for Certain VA Purposes, 80 Fed. Reg. 14308 (Mar. 19, 2015). A necessary element for establishing any service connection claim is the existence of a current disability. See Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that section 1110 of the statute requires the existence of a present disability for VA compensation purposes). The presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board's adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran filed his claim for service connection for PTSD in December 2008. His claim must be denied because the preponderance of the evidence reflects that he has not had PTSD since that time or at any prior thereto. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013) (Board erred in failing to address pre-claim evidence in assessing whether a current disability existed, for purposes of service connection, at the time the claim was filed or during its pendency). The Veteran's service medical records to include his entry and separation examination reports are negative for any symptoms of, treatment for, or diagnosis of a back disability. Specifically, his April 1968 entry examination and April 1970 separation examination shows a no psychiatric issues and no symptoms or diagnoses related to psychosis were noted. In addition, the report of medical history completed by the Veteran at the time of separation from service indicates no history of mental health problems, and no indication of a disability at that time. Thus, the Veteran's service medical records do not provide probative evidence in support of his claim. Post-service, pertinent evidence of record includes VA treatment records and a July 2009 VA PTSD examination. A February 2007 VA initial psychological assessment, conducted by a psychologist, reflects the Veteran was diagnosed with adjustment disorder and depressed mood. Here, the Veteran reported that he desired to be evaluated for PTSD. The evaluation report indicates that on interview, the Veteran did not endorse any symptoms consistent with PTSD or that would support such diagnosis. The Veteran reported feeling "down and out" and "depressed forever." He described symptoms of anger and difficulty relocating to Pittsburgh from Kentucky five years ago to marry his current wife. He reported thinking of experiences in Vietnam at times but was not regularly bothered by anything. He also reported consuming one case of beer per week or six beers on four occasions per week. The examiner noted that the Veteran's primary complaint was feeling isolated in Pittsburgh and the fact that the people were unfriendly, noting that the Veteran described himself as a depressed person however stated that things have recently become more difficult for him. The examiner concluded that adjustment disorder and depressed mood appear to be related to the Veteran's relocation to Pittsburgh as well as some likely characterological issues. Thereafter the Veteran was referred to and seen by Dr. F. in March 2007. At this time, he was diagnosed with depressive disorder, NOS, alcohol dependence, and PTSD was rule out. He was prescribed prozac and trazodone for treatment and advised to decrease his alcohol consumption. VA treatment records dated from January 2009 to February 2007 show the Veteran was diagnosed and treated for the following Axis I disorders: depression, NOS, alcohol dependency, tobacco use disorder, and rule out PTSD. During this period he reported alcohol abuse, difficulty with his marriage and other relationships, and nightmares about Vietnam. See Pittsburgh VAMC treatment records; Clarksburg VAMC treatment records. A September 2008 VA Psychiatric Consult record shows Dr. S.C., a VA psychiatrist, evaluated the Veteran for PTSD. Following interview and examination of the Veteran, the examiner provided the following Axis I diagnoses: anxiety disorder, NOS, rule out PTSD, and depression, NOS. See Clarksburg VAMC treatment record. According to the Veteran's reports, he was diagnosed with PTSD by Dr. J. F. the previous year who prescribed prozac and trazadone. The Veteran reported nightmares and flashbacks of Vietnam occurring two to three times weekly. He also endorsed symptoms to include depression, hopelessness, and suicidal ideation. The Veteran described several in service stressors to include witnessing two soldiers fatally shot in Vietnam; incoming mortar and rocket attacks; and the injury of other soldiers who were severely injured and had to be medevaced. The Veteran also reported drinking six to eight beers daily for the past thirty years. VA treatment notes of July 2008, reflect that PTSD screening, conducted by a licensed nurse practitioner, was positive. See Clarksburg VA VAMC. VA treatment notes of January 2009, reflect that PTSD screening, conducted by a licensed nurse practitioner, was negative. VA treatment notes of September 2011, December 2012 VA treatment record notes a positive PTSD screening conducted by a nurse practitioner. See Beaver CBOC treatment record located in VVA. A February 2009 VA treatment record notes the Veteran presented for referral to visit with a social worker. He reported feeling very depressed and that treatment included celexa and trazodone. Thereafter, in February 2009, Mr. T.J.P., a VA social worker interviewed the Veteran for an initial assessment. The Veteran reported sleep disturbance, nightmares, and depression since returning from Vietnam. He endorsed anxiety and irritability and denied flashbacks. He also reported that he probably has startle response. He reported drinking to excess his entire life. Concerning his military history, the Veteran reported while in Vietnam he spent half his time with the infantry and the other half completing office work because he could type. He was unwilling to discuss more traumatic experiences. The social worker noted that the Veteran was clearly depressed. Axis I diagnosis was major depression, rule out PTSD. In March 2009, the VA social worker submitted correspondence summarizing the February 2009 assessment. Mr. T.J.P. explained that the Veteran was referred for assessment because he preferred to not continue antidepressant medication. A July 2009 VA PTSD examination report contains the conclusion that the Veteran did not meet criteria A for PTSD. The Veteran reported that he started smoking cigarettes and drinking alcohol in Vietnam; however, he denied any regular use of alcohol. He also reported drinking twelve beers daily for the past thirty-eight years and exhibits violent, destructive behavior while intoxicated. Following interview and examination of the Veteran the examiner opined that the Veteran did not report a chronic stressor or symptoms consistent with PTSD but instead the Veteran reported symptoms in which the examiner found to be consistent with depressive disorder. Specifically, he described sadness related to separating from his wife, and a history of irritability but denied any specific circumstance for his irritability. He also endorsed nightmares about Vietnam which he described as simply trying to run away. He further reported dreams about being trapped in a coal mine due to two family members being killed in such accidents (Notably, during the July 2009 VA examination the Veteran reported employment as a coal miner for 13 years). He also reported eagerly watching war movies and a decrease in interest of activities. He denied problems with memory, concentration, or sleep difficulty, hypervigilance, and startle response. Psychological testing indicated a mild level of depressive symptoms. The examiner noted that the Veteran reported several different types of combat experiences such as often being attacked, receiving incoming fire, and being shot at, however did not report such incidents during interview. Additionally, the examination report notes that on Impact of Event Scale (IES), the Veteran scored a 42 out of a possible 88 with the most distress report on numbing symptoms and a 97 on the Mississippi Scale for Combat-Related PTSD, which falls below the established cut off for diagnosis of PTSD. In so finding, the examiner opined that the Veteran did not report symptoms indicative of PTSD but instead consistent with depressive disorder and given the Veteran's alcohol use "this may simply be a substance-induced depressive disorder rather than a freestanding depression." The examiner concluded that: At this time, the veteran has not reported experiencing a traumatic stressor that meets criterion A for diagnoses of PTSD and his symptom reporting does not meet criteria for PTSD. The veteran has been a chronic abuser of alcohol since his time in Vietnam and has suffered consequences from his alcohol use including increased tolerances, legal consequences, and disruption in marriage and functioning due to alcohol use. Although the Veteran appears to have been functioning at least on a minimally adequate level over the years, the added stressor of moving to Pennsylvania to live with his wife and then subsequent marital separation has likely resulted in increased alcohol use which has led to increased depressive symptoms and violent and erratic behavior in recent years. In so finding, the examiner recommended psychotropic medications, noting that such treatment is likely to have minimal benefit if the Veteran continues to use alcohol; concluding that primary treatment at that time would be alcohol cessation. As noted above, the criteria for establishing entitlement to service connection for PTSD includes medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a). The preponderance of the above evidence reflects that the Veteran has not had PTSD during the pendency of the claim or prior thereto. In February 2009, a VA social worker rendered an Axis I diagnosis of major depression, rule out PTSD. The phrase "rule out" is "typically used to identify an alternative diagnosis that is being actively considered, but for which sufficient data has not yet been obtained." Alvin E. House, DSM-IV Diagnosis in the Schools 33 (2002). "Rule out" is "a reminder or instruction to continue seeking the information which would allow a diagnosis to be conclusively identified or eliminated from consideration (for the present)." Id. cited in Ausler v. Shinseki, No. 12-3276, 2013 WL 5614245 (October. 15, 2013) (mem dec.). The possibility of a PTSD diagnosis was therefore raised by the evidence of record. However, given that neither the positive and negative PTSD screens nor the major depression, rule out PTSD diagnosis contained an explanation for the reasons for the opinion that the Veteran did not have PTSD, and were not conducted by a psychologist or psychiatrist, the Board accords them less probative weight than the July 2009 VA examiner's opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). In contrast, the psychologist who conducted the July 2009 VA examination indicated that he reviewed the claims folder, gave a detailed description of the Veteran's verified combat stressor, and described the Veteran's medical history and the examination findings. In his assessment, the psychologist found that, although the Veteran did endorse some symptoms of PTSD, he did not report the full constellation of symptoms or severity or frequency of such and there was over-reporting and "significant symptom severity exaggeration" on psychometric testing that was not consistent with the clinical presentation or the medical records. The psychologist therefore concluded that the Veteran did not meet the criteria for PTSD either in terms of a specific identified traumatic event that met criterion A or in terms of symptom presentation. The Veteran reported alcohol use during active service and also since his return from Vietnam he consumes alcohol three to four days per week, typically consuming ten to twelve beers per episode. Axis I diagnoses was alcohol dependence and substance-induced mood disorder. The psychologist opined that "impairment in functioning across social, occupational, and emotional domains appears to be a function of longstanding substance abuse." Further, the examiner concluded that there has been no lost time or decreased productivity due to psychiatric issues other than those created by his alcohol dependence. As the psychologist who conducted the July 2009 VA examination explained the reasons for his conclusions based on an accurate characterization of the evidence of record and detailed psychiatric examination findings, his opinion that the Veteran does not have PTSD, coupled with the multiple VA physicians who evaluated the Veteran for PTSD and opined that he did not have PTSD, to substantial probative weight, greater than that of the positive PTSD screen and rule out PTSD diagnoses for which a rationale was not given. See Nieves-Rodriguez, 22 Vet. App. at 304. To the extent that the Veteran claims that he has PTSD as opposed to a different psychiatric disorder, his testimony is not competent. Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"). In addition, the regulation specifically provides that service connection for PTSD requires medical evidence diagnosing this disorder. For the foregoing reasons, the preponderance of the evidence reflects that the Veteran has not had PTSD during the pendency of his claim. The benefit of the doubt doctrine is therefore not for application, and the claim must be denied. 38 U.S.C.A. § 5107 (b). ORDER Service connection for PTSD is denied. REMAND After a review of all of the evidence, the Board finds that further evidentiary development is necessary before a decision can be reached on the merits of the underlying claim for anxiety disorder, depression, and adjustment disorder. Hence, a remand to the AOJ is necessary. The Veteran has been diagnosed on multiple occasions with anxiety disorder and depression; however VA treatment records do not provide a nexus between such disorders and active service. Specifically, an April 2009 VA treatment record reflects a diagnosis of major depression. Additionally, a February 2007 VA initial psychological assessment, conducted by a psychologist, reflects the Veteran was diagnosed with adjustment disorder and depressed mood. As discussed above, the July 2009 VA examiner opined that the Veteran's longstanding history of alcohol abuse/dependence and impairment of functioning is secondary to chronic alcohol use and provide Axis I diagnoses of alcohol dependence and substance-induced mood disorder. Further, the examiner concluded that there has been no lost time or decreased productivity due to psychiatric issues other than those created by his alcohol dependence. Although the July 2009 VA examiner discussed in detail the Veteran's psychiatric treatment to include the diagnoses of anxiety disorder and depression, he did not provide a diagnosis for either condition nor did he provide an etiology opinion for the previous diagnoses of anxiety disorder and depression. Most recently, and after the July 2009 VA PTSD examination, a September 2009 VA Psychiatric Consult record shows the VA psychiatrist provided the following Axis I diagnoses anxiety disorder, NOS, rule out PTSD, and depression, NOS. In view of the above-noted deficiencies, the Board finds that the evidence of record is still not sufficient to resolve the claim, and that remand of this matter to obtain an adequate opinion-based on full consideration of the Veteran's documented history and assertions, and supported by completely, clearly-stated rationale-is needed to resolve the claim for service connection for anxiety disorder, depression, and adjustment disorder. See 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2015); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Hence, the AOJ should arrange for the Veteran to undergo VA examination by an appropriate professional. With regard to the Veteran's statements, the Board notes an entry in the Veteran's personnel records under combat history - expeditions - awards record which indicates that the Veteran participated in operations against Viet Cong Forces in the Republic of RVN from July 1969 to March 1970. This, along with the Veteran's testimony appears to reflect that he engaged in combat with the enemy. See VAOPGCPREC 12-99 (October 18, 1999) (in the absence of a medal or decoration indicating combat, determination as to whether a Veteran engaged in combat should be made on a case by case basis). The Veteran's lay statements should therefore be considered competent and credible. Accordingly, the claim for entitlement to service connection for an acquired psychiatric disorder other than PTSD is REMANDED for the following action: 1. Undertake appropriate development to obtain any outstanding medical records (VA or private) relevant to the Veteran's appeal. Any additional treatment records identified by the Veteran should be obtained and associated with the claims file. (Consent to obtain records should be obtained where necessary.) 2. Then, schedule the Veteran for a VA examination as to the etiology of any psychiatric disability. All necessary tests should be conducted. The examiner must be provided access to the Veteran's claims file and to all records located on either the Virtual VA or VBMS data bases. Following the examiner's documented review of the evidence the examiner should indicate whether it is at least as likely as not (50 percent probability or more) that any current psychiatric disorder other than PTSD is related to or had its onset during military service. In answering this question, the examiner should accept the Veteran's statements as to his in-service observations to be competent and credible. A complete rationale must accompany any opinion provided. 3. Then, readjudicate the Veteran's claim for entitlement to service connection for an acquired psychiatric disorder other than PTSD. If the benefit sought is not granted, the Veteran and his representative should be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs