Citation Nr: 1721876	
Decision Date: 06/14/17    Archive Date: 06/23/17

DOCKET NO.  12-24 927	)	DATE
	)
	)

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


THE ISSUES

1.  Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and schizoaffective disorder.

2.  Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance or on account of housebound status.


REPRESENTATION

Appellant represented by:	AMVETS


ATTORNEY FOR THE BOARD

D. Barrett, Associate Counsel



INTRODUCTION

The Veteran served on active duty from July 1967 to May 1969.  This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska, which, in pertinent part, declined to reopen a claim for service connection for schizoaffective disorder and denied entitlement to SMC.

Additional service personnel records were received into the claims file in November 2012.  These records are relevant and were not associated with the file when VA previously decided the claims.  Thus, the claims on appeal are reconsidered without consideration of whether there is new and material evidence.  38 C.F.R. § 3.156(c).

The Board remanded the Veteran's claims for further development in January 2014.  


FINDINGS OF FACT

1.  An acquired psychiatric disorder did not have onset in service and is not otherwise related to service.

2.  The Veteran does not have any service-connected disabilities.


CONCLUSIONS OF LAW

1.  The criteria for service connection for an acquired psychiatric disorder have not been met.  38 U.S.C.A. §§ 1131, 1154(a), 5107(b) (West 2015); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2016).
 
2.  The criteria for special monthly compensation have not been met.  38 U.S.C.A. § 1114 (West 2015); 38 C.F.R. § 3.350 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duties to Notify and Assist

VA has a duty to provide notice of the information and evidence necessary to substantiate a claim.  38 U.S.C.A. § 5103(a) (West 2015); 38 C.F.R. § 3.159(b) (2016).  Standard letters sent in January 2012 and April 2013 satisfied the duty to notify provisions.

VA also has a duty to provide assistance to substantiate a claim.  38 U.S.C.A. § 5103A (West 2015); 38 C.F.R. § 3.159(c) (2016).  The Veteran's service treatment and personnel records have been obtained and associated with the file, as well as post-service VA and private treatment records.  The Veteran was afforded a VA psychiatric examination in April 2013.  This examination, along with its expert medical opinion, is sufficient evidence for deciding the claim.  The report is adequate as it is based upon consideration of the Veteran's prior medical history and evaluations, describes the disability in sufficient detail so that the Board's evaluation is a fully informed one, and contains a reasoned explanation.  Thus, VA's duty to assist has been met.

Pursuant to the remand directives, the RO attempted to obtain additional records from the Social Security Administration (SSA).  In May 2014, the SSA responded that all medical records for the Veteran had been destroyed and further efforts to obtain them would be futile.  There has been substantial compliance with the directives.  Stegall v. West, 11 Vet. App. 268 (1998).  VA's duty to assist has been met.

II. Service Connection

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a).  Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury.  Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)].

Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities are presumed to have been incurred in service if they manifest to a compensable degree within one year of discharge from service.  38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309.

Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service.  See 38 C.F.R. § 3.303(b).  However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint.  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 

To establish entitlement to service connection for PTSD the evidence must satisfy three basic elements.  There must be 1) medical evidence diagnosing PTSD; 2) a link, established by medical evidence, between current symptoms of PTSD and an in-service stressor; and 3) credible supporting evidence that the claimed in-service stressor occurred.  38 C.F.R. § 3.304(f).  In establishing a valid diagnosis of PTSD, VA has adapted the nomenclature of the DSM.  See 38 C.F.R. § 4.125.  The DSM-5 recently replaced the DSM-IV.  Effective August 4, 2014, VA issued an interim rule amending the portion of its Schedule for Rating Disabilities dealing with mental disorders and its adjudication regulations to refer to certain mental disorders in accordance with the DSM-5.  The provisions of the interim final rule only apply, however, to all applications for benefits that are received by VA or that are pending before the AOJ on or after August 4, 2014.  Since the Veteran's claim was certified to the Board in December 2013, the DSM-IV is applicable.

There also are special considerations for PTSD claims predicated on a personal assault.  The pertinent regulation, 38 C.F.R. § 3.304(f)(5), provides that PTSD based on a personal assault in service permits evidence from sources other than the Veteran's service records which may corroborate his or her account of the stressor incident.  Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy.  38 C.F.R. § 3.304(f)(5).  VA's Adjudication Procedures Manual (M21-1MR) also identifies alternative sources for developing evidence of personal assault, including private medical records, civilian police reports, reports from crisis intervention centers, testimonial statements from confidants such as family members, roommates, fellow service members, or clergy, and personal diaries or journals.  M21-1MR, Part IV, Subpart ii, 1.D.17.g.

Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources.  Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a 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 behavior changes. 38 C.F.R. § 3.304(f)(5).

VA will not deny a PTSD claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than the Veteran's service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence.  In addition, VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred.  38 C.F.R. § 3.304(f)(5). 

It is important to note that, for personal assault PTSD claims, an after-the-fact medical opinion may serve as the credible supporting evidence of the reported stressor.  Patton v. West, 12 Vet. App. 272, 280 (1999).  Additionally, a Veteran's failure to report an in-service assault to military authorities may not be considered as relevant evidence tending to prove that an assault did not occur.  AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

A.  Acquired Psychiatric Disorder

The Veteran seeks service connection for an acquired psychiatric disorder.  

With regard to the first element necessary to establish service connection for PTSD, the Board finds that the competent and persuasive evidence demonstrates that the Veteran does not have a current diagnosis of PTSD.

The Board is mindful of the various AXIS I findings of PTSD noted in the VA treatment records during the pendency of this appeal.  See VA treatment notes dated in August 2012, September 2010, November 2012, December 2012, and January 2013.  However, there notably is no discussion of the clinical tests or evaluation methods used to reach those diagnoses.  

In contrast, a VA examination in April 2013, a VA examiner determined that the Veteran does not meet the criteria for a diagnosis of PTSD.  The Board finds that the April 2013 VA examination report to be the most probative evidence regarding whether the Veteran has a diagnosis of PTSD.

The probative value or evidentiary weight to be attached to a medical opinion is within the Board's province as finder of fact.  The guiding factors in evaluating the probative value of a medical opinion include whether the opinion is based upon sufficient facts, and whether the expert applied valid medical analysis to the significant facts of the case in order to reach the conclusion rendered in the opinion.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-3 (2008).  

Here, the VA examiner reviewed the Veteran's claims file and conducted a clinical examination.  The examination report delineated each of the PTSD criteria that were not found to be met.  In his rationale explaining why the Veteran did not have a diagnosis of PTSD, the examiner noted that the Veteran had no markers for PTSD in service and does not exhibit a diagnosis of PTSD based on the current clinical assessment.  The examiner discussed the Veteran's longstanding history of severe and persistent mental problems.  He noted that a prior assessment of PTSD in March 1999 was not by a licensed psychologist and the Veteran was administered the Mississippi Scale for PTSD which has no validity indicators.  The examiner also noted that in the hundreds of treatment records and mental health disorder notes that document the Veteran's severe and persistent psychotic disorders- PTSD is only briefly and rarely mentioned in the huge compilation of notes about his psychosis- and where it is, it is not supportive of a full DSM-IV diagnosis.  This is further evidence against a diagnosis of PTSD.  

The 2013 VA diagnosis and opinion reflects clinical testing and is supported with a thorough rationale to support the lack of a DSM diagnosis of PTSD.  This opinion and rationale was provided based upon an in-depth review of the Veteran's claims file, clinical history, and a clinical examination.  The Board finds the VA examiner's opinion to be of great probative value because the conclusion is supported by a medical rationale, facts, and reasoning.  See Id.

As the competent and probative evidence of record fails to reflect a current diagnosis of PTSD, service connection for PTSD is not warranted.  In the absence of proof of a present disability, there can be no valid claim.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).

There is, however, competent evidence establishing that the Veteran has been diagnosed with an acquired psychiatric disorder during the claim period, namely schizoaffective disorder.  However, no medical professional has provided a positive nexus opinion linking this disorder to a credible in-service event.

At the April 2013 examination, the Veteran reported military sexual trauma.  However, the examiner determined this incident was psychotic in nature and not related to military service.  The examiner determined that this incident was a contrivance of the Veteran's mind due to psychosis and further maintained that the Veteran did not have any markers in service, and he adamantly denied any other military trauma, including rocket or mortar attack claims, etc.  The examiner concluded that the Veteran's schizophrenia, paranoid type was not caused by or aggravated by military service.  This opinion and rationale was provided based upon an in-depth review of the Veteran's claims file, clinical history, and a clinical examination.  The Board therefore finds the VA examiner's opinion to be of great probative value because it is supported by a medical rationale, facts, and reasoning.  See Nieves-Rodriguez.

Service treatment records do not otherwise reflect a diagnosis of a psychiatric disorder in service.  Thus, service connection under 38 C.F.R. § 3.303(a), for onset in service, is not warranted.

Historically, and prior to the claim on appeal, the Veteran's post-service treatment records show various diagnoses of psychotic disorders, including schizoaffective disorder, and prior historical diagnoses including delusional disorder, alcohol and drug abuse, and personality disorders.  However, there no evidence that a psychosis manifested to a compensable degree within a year of his separation from service.  Thus, service connection for a psychosis on a presumptive basis is not established.  38 C.F.R. §§ 33.307, 3.307(9). 

The record is also absent any medical provider relating a current diagnosis of any psychiatric disorder, including PTSD and schizoaffective disorder, to a credible in-service event to include personal assault or other stressful event.  

In addition to sexual trauma, the Veteran had previously claimed a different stressful incident in service, that he witnessed his friend die in Vietnam.  In March 2009, a Joint Services Records Research Center (JSRRC) Coordinator provided the RO a formal finding that there was a lack of information required to corroborate the stressor(s) associated with the claim for service connection for post-traumatic stress disorder (PTSD).  A review of Vietnam casualties was unable to verify the Veteran's stressor, which resulted in a request for additional information from the Veteran.  The Veteran was unable to provide any information necessary to support his claim.  

Notably, the Veteran denied any other military trauma at the 2013 VA examination.  Also, with regard to his memory, he indicated to a VA medical professional that "It's kinda shaky sometimes.  I think it's because I have brain damage. I don't think too good some times.  Ever since I had breakdowns."  See, VA psychological assessment report, dated in November 2012.  Thus, the Veteran's own recollections of service events are internally inconsistent and not credible for corroboration of the military sexual trauma or other claimed in-service event.  

In sum, the competent evidence demonstrates that a psychiatric disorder did not have onset in service, is not related to service, and did not manifest within a year of discharge.  To the extent that the Veteran alleges his current disorder is related to the alleged stressful events discussed above, the Board has found the Veteran's accounts to be uncorroborated, incapable of corroboration, or not credible.  The preponderance of the evidence is against the Veteran's claim of service connection for an acquired psychiatric disorder, to include PTSD and schizoaffective disorder; therefore, the benefit of the doubt rule does not apply.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  Accordingly, service connection for an acquired psychiatric disorder, to include PTSD and schizoaffective disorder is not warranted.

B.  Special Monthly Compensation

The Veteran contends that he is entitled to special monthly compensation based on the need for aid and attendance. 

Special monthly compensation (SMC) is payable where a Veteran has a service-connected disability or disabilities that render him or her so helpless as to be in need of the regular aid and attendance of another person.  38 U.S.C.A. § 1114(l) (West 2015); 38 C.F.R. § 3.350(b)(3) (2016).  Importantly, in order for the Veteran to prevail in his claim, the evidence must show that it is a service-connected disability that has resulted in his being in need of regular aid and attendance or being housebound.  See Prejean v. West, 13 Vet. App. 444 (2000).  

As the Veteran's claim for service connection is denied herein, and as he is not otherwise established service connection for any other disabilities, entitlement to SMC must be denied as a matter of law.  Sabonis v. Brown, 6 Vet. App. 426 (1994).


ORDER

Service connection for an acquired psychiatric disorder is denied.

SMC based on the need for aid and attendance is denied.



____________________________________________
D. JOHNSON
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs