Citation Nr: 1722167 Decision Date: 06/15/17 Archive Date: 06/29/17 DOCKET NO. 04-41 729 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Alhinnawi, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1974 to September 1977 and June 1980 to September 1992, including service in Southwest Asia during the Persian Gulf War. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2004 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board most recently remanded this appeal for additional development in September 2015. The Veteran was afforded personal hearings before Veterans Law Judges in January 2007 and April 2015. Both judges have since retired. As a result, and at his request, he was afforded a third hearing before the undersigned in April 2017. Transcripts of all three hearings are associated with the claims file. FINDINGS OF FACT 1. A diagnosis of PTSD has not been made in connection with a stressor event that has been corroborated. 2. A chronic psychiatric disorder was not shown in service or for several years thereafter; and, the preponderance of the evidence fails to establish that the Veteran's diagnosed depressive is etiologically related to service. 3. The Veteran's symptoms, such as fatigue, sleep impairment, and loss of libido, have been attributed to a known clinical diagnosis; and, there is no competent evidence of an undiagnosed illness or unexplained chronic multisymptom illness. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, to include depressive disorder and PTSD, have not been met. 38 U.S.C.A. §§ 1110, 1117, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.317 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). The required notice was provided, and neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, adjudication of his claim at this time is warranted. As to VA's duty to assist, all necessary development has been accomplished, and therefore, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's service treatment records from June 1980 to September 1992 are unavailable, thereby imposing a heightened duty to assist on VA. VA met its duty by notifying the Veteran that VA could not obtain his service treatment records, assisting the Veteran in developing his claim, and notifying him of evidence he could submit to support his claim. Available service treatment records, VA treatment records, and private treatment records have been obtained. Following his April 2017 hearing, the matter was held open to afford him the Veteran the opportunity to submit additional medical records. No such records have been received. In addition, development in substantial compliance with the Board's remand instructions has been completed, including obtaining VA treatment records and issuing a Supplemental Statement of the Case. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran was also provided with multiple VA examinations in May 2013 and May 2016, which the Board finds to be adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board notes that the Veteran and his representative challenged the adequacy of the May 2016 examination, contending that the examiner did not spend sufficient time with the Veteran and failed to account for the Veteran's claimed PTSD stressors in determining whether he had a diagnosis of PTSD. The Board disagrees. The examiner conducted a thorough examination of the Veteran, including soliciting the Veteran's relevant history, symptomology, and lay statements, as well as assessing the Veteran's behavior and physical features. With respect to the Veteran's stressors, the examination report does not indicate that the examiner discounted the Veteran's claimed stressors, and the examiner reviewed the Veteran's prior treatment records, which describe the Veteran's stressors in detail. As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). There is no prejudice to the Veteran in adjudicating this appeal, because VA's duties to notify and assist have been met. Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for a disability requires evidence of: (1) a current disability; (2) a disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain chronic diseases, including psychoses, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307 (a) (3), 3.309(a). Moreover, for such chronic diseases, an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309 (a); See 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2014). However, as the Veteran has not been diagnosed with a psychosis, application of 38 C.F.R. § 3.303 (b) is not warranted. PTSD The Veteran's primary contention is that he has PTSD as a result of his wartime experiences. In order to establish service connection for PTSD, the evidence of record must include a medical diagnosis of PTSD 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) (2016). A valid diagnosis of PTSD requires that a person has been exposed to a traumatic event in which both of the following were present: (1) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of himself or others, and (2) the person's response involved intense fear, helplessness, or horror. An April 2013 VA behavioral health intake included a diagnosis of PTSD. Other records make reference to a PTSD diagnosis or history of PTSD. However, when he was examined in May 2013 and May 2016, the examiners evaluated the Veteran and reviewed the claims file, to include the April 2013 intake, but did not diagnose PTSD. A November 2013 supplemental opinion rejected the PTSD diagnosis as well. The examiner explained that a diagnosis of PTSD could not be rendered based on the Veteran's subclinical symptoms and the absence of significant distress in important functional areas. Based on the foregoing, the Board concludes that the preponderance of the evidence is against a finding that the Veteran had diagnoses of PTSD. Service connection for PTSD is thereby not warranted, since the evidence indicates that this does not exist. 38 U.S.C.A. § 1110 (West 2014 & Supp. 2015); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992). The Board acknowledges that the requirement of a current disability is satisfied when the claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim and that a claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). However, the facts of the present case are distinguished from those of McClain. The evidence does not reflect that the Veteran had PTSD that resolved during the course of the appeal. Rather, as discussed herein, the Board finds that the most probative evidence does not establish that the Veteran had a PTSD diagnosis at any point during the appeal period or proximate thereto. See Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Therefore, the Board concludes that the evidence does not support the conclusion that the Veteran has a valid diagnosis of PTSD and, consequently, service connection for PTSD is not warranted. 38 U.S.C.A. § 5107 (b) (West 2014 & Supp. 2015); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Other Psychiatric Disorders The service treatment records do not reflect complaints of, treatment for, or a diagnosis related to an acquired psychiatric disorder while in service despite VA's best attempts to locate documents of psychiatric treatment. It is also highlighted that the Veteran's separation physical examination in October 1966 fails to document any complaints of or observed symptoms related to an acquired psychiatric disorder. A May 2016 VA examination diagnosed the Veteran as having a depressive disorder. Element (1) of Shedden has been met. As for the second element of Shedden, the Veteran reports that he initially experienced psychiatric symptoms during the latter part of his second period of active service. He states that he was seen at Ft. Benning. Unfortunately, service treatment records from the Veteran's second period of service are unavailable. Three separate searches/requests have been made. The Veteran has been advised of such and given the opportunity to provide his own copies. He does not have such records. In any event, the Veteran is deemed competent to report having feeling of depression and anxiety in service. What remains for consideration is whether there is a nexus between the Veteran's service and his current diagnosis. There is no competent evidence of a nexus between the diagnosis of depressive disorder and the Veteran's service. The May 2016 VA examiner opined that the Veteran's depressive disorder is less likely as not related to his military service. The examiner determined that there was no objective evidence to support any mental disorder symptoms since 2013, and that the Veteran's reported symptoms are related to his seizure disorder and subsequent impairments based on review of the record. Reference was made to a May 2002 family mental health assessment wherein the Veteran denied stress, fears, phobia, and depression. It was also highlighted that the Veteran stopped working in 2002 due to a seizure disorder. The examiner noted that an April 2013 psychology intake wherein the Veteran indicated that the onset of his depression occurred after he was prescribed medications for his seizure disorder. The Board affords the examiner's opinion great weight, as it was based on medical principles and adequate rationale, and the examiner considered the Veteran's lay statements and history of symptom manifestation. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). There are no competent opinions to the contrary. The Board acknowledges the Veteran's statements attributing his disability and other symptoms to service; nevertheless, the Veteran is not competent to opine on the etiology of a complex medical condition such as depressive disorder, and his statements are therefore afforded no weight. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Consideration has also been given to the Veteran's report that he has been experiencing symptoms of depression since service. He is competent to make such statement. However, that history is not credible. There are no records pertaining to complaints, treatment, or diagnosis of an acquired psychiatric disorder until many years after service. Moreover, and as noted by the VA examiner, the Veteran denied a history of psychiatric symptoms in 2002 and reported in 2013 that the onset of his depression occurred after he started to receive care/medication for his non-service connected seizure disorder. Based on the foregoing, the preponderance of the evidence is against service connection for an acquired psychiatric disorder. Finally, service connection may be established for a Persian Gulf veteran who exhibits objective indications of a chronic disability resulting from an illness or combination of illnesses manifested by one or more signs or symptoms such as those listed in 38 C.F.R. § 3.317(b), provided that such disability: (i) became manifest either during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2016; and (ii) by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317(a)(1). The Veteran is not entitled to service connection as a Gulf War veteran under 38 C.F.R. § 3.317. As the Board discussed in September 2013, VA examinations have attributed the Veteran's symptoms, such as depressed mood, sleep impairment, memory loss, decreased libido, and fatigue, to known diagnoses. Moreover, a May 2013 Gulf War examination did not find an undiagnosed illness or unexplained chronic multisymptom illness productive of the Veteran's symptomology. To the extent the Veteran contends that he suffers from chronic disability due to an undiagnosed illness or unexplained chronic multisymptom illness, he is not competent to make such a determination, and his statements are afforded no weight. See Jandreau, 492 F.3d at 1376-77. ORDER Entitlement to service connection for an acquired psychiatric disorder, to include depressive disorder and PTSD, is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs