Citation Nr: 1727770 Decision Date: 07/17/17 Archive Date: 07/27/17 DOCKET NO. 07-31 419 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), major depressive disorder (MDD), anxiety, and mood disorder. (The issues of entitlement to service connection for headaches, arthritis of the bilateral shoulders, and hypertension are the subject of separate decisions.) REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. J. Houbeck, Counsel INTRODUCTION The Veteran served on active duty from December 1972 to December 1976, with additional service in the Army reserve. This matter comes before the Board of Veterans' Appeals (Board) from a March 2005 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In April 2011, the Veteran testified before the Board at a hearing held via videoconference. A transcript of the hearing is included in the electronic claims file. In October 2011, September 2014, and January 2016, the Board remanded the claim for additional development. The matter again is before the Board. This appeal was processed using the Veteran's Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. In addition, a paper temp file was reviewed. Accordingly, any future consideration of the Veteran's case should take into consideration the existence of these electronic records. In addition to the headache and psychiatric disorder claims detailed above, the Board notes that the issues of entitlement to service connection for arthritis of the bilateral shoulders and for hypertension are in appellate status; however, in April 2017 the Veteran testified at a hearing before another Veterans Law Judge (VLJ) on these issues. A determination on those issues will be issued once a transcript of that hearing has been completed, as well as any other necessary actions. This appeal was processed using the Veteran's Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. Accordingly, any future consideration of the Veteran's case should take into consideration the existence of these electronic records. During the aforementioned April 2017 Board hearing, another VLJ granted the Veteran's petition to have the appeal advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). As such, the Board will afford the same consideration to the present claim. FINDING OF FACT An acquired psychiatric disorder was not manifest in service and is not otherwise related to service. CONCLUSION OF LAW Service connection for an acquired psychiatric disorder is not warranted. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) VA has met all statutory and regulatory notice and duty to assist provisions. 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) (2016). VA's duty to notify was satisfied by letters to the Veteran in December 2004 and September 2009. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016). The Veteran was afforded a hearing before the undersigned Veterans Law Judge (VLJ) during which he presented oral argument in support of his claim. Here, the VLJ clarified the issue and listened to the Veteran's statements regarding his situation. Multiple subsequent remands have attempted to obtain additional evidence based, in part, on the Veteran's testimony during that hearing. The actions of the VLJ supplement VCAA and comply with 38 C.F.R. § 3.103. The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records (including reserve records) and VA treatment records are in the file. Records from the Social Security Administration (SSA) were requested, but a response from SSA indicated that no records were found. Private treatment records have been associated with the claims file, to the extent possible. The Veteran has at no time otherwise referenced any other outstanding records that he wanted VA to obtain. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4)(i) (2016). In this case, the Veteran was provided a VA examination for his psychiatric disorders in June 2016. The examiner provided a diagnosis and medical opinion with complete rationale based on review of the claims file and available medical records, the Veteran's reported history, his current symptoms, a psychiatric examination, and appropriate diagnostic testing. The Board, therefore, finds the VA examination reports to be thorough, complete, and sufficient upon which to base a decision with respect to the Veteran's claim. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Based on the association of service treatment records, service personnel records, VA treatment records, the attempts to obtain SSA records, the June 2016 VA examination report, and subsequent readjudication of the claim, the Board finds that there has been substantial compliance with its prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. That a disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2016). 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). For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including psychoses, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2016). To establish a right to compensation for a present disability, a Veteran must show: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303(a); see also Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for PTSD specifically requires medical evidence establishing a diagnosis of the disability, credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between the current symptomatology and the claimed in-service stressor. See 38 C.F.R. § 3.304(f) (2016). If the evidence establishes that the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. See 38 C.F.R. § 3.304(f)(1) (2016); see also, 38 U.S.C.A. § 1154(b) (West 2002 & Supp. 2013). Similarly, if a stressor claimed by a veteran is related to the Veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of posttraumatic stress disorder and that the Veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. See 38 C.F.R. § 3.304(f)(3); 75 Fed. Reg. 39,843 (July 13, 2010); 75 Fed. Reg. 41092 (July 15, 2010). Otherwise, the law requires verification of a claimed stressor. Where a determination is made that the Veteran did not "engage in combat with the enemy," or the claimed stressor is unrelated to combat, the Veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor. See Moreau v. Brown, 9 Vet. App. 389, 395 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). In such cases, the record must include service records or other credible evidence that supports and does not contradict the Veteran's testimony. Doran v. Brown, 6 Vet. App. 283, 289 (1994). Moreover, a medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressors. See Moreau, 9 Vet. App. at 395-396; Cohen v. Brown, 10 Vet. App. 128, 42 (1997). The Veteran contends that he experienced numerous stressful events in service that have caused his current psychiatric disorder. Specifically, he asserts that in 1973, while stationed in Fort Sill, Oklahoma, with the Bravo Battery 2nd 18th Field Artillery, he was pulled from an advanced training exercise minutes before the soldiers participating in the exercise were hurt or killed in a motor vehicle accident. Also while stationed in Fort Sill, he almost drowned in a lake and was rescued by onlookers. While stationed in Germany, during a training exercise, his sleeping bag caught on fire and he had to be rescued by squad members. During another training exercise, his gas mask got caught on a turret of a vehicle and he was almost fatally injured. Also while in Germany, his best friend, Cisco, dropped dead while the two were playing a game of cards. The Veteran also felt that the general nature of being trained for battle, as well as a number of terrorist attacks that occurred in nightclubs in Europe in the 1970s while he was stationed in Germany, have caused him to experience consistent stressful memories and have contributed to his current psychiatric disorder. He contends that these events have caused him to experience nightmares and intrusive memories for many years. In a December 1972 Report of Medical Examination prior to entrance into service, the Veteran had a normal psychiatric examination. In a contemporaneous Report of Medical History, however, the Veteran described a history of nervous trouble that was noted to be occasional in nature. A November 1976 Report of Medical Examination prior to separation from active service included a normal psychiatric evaluation. He subsequently indicated that there was no change in his medical condition between the time of examination and separation from service. In May 1979 and September 1985 Reports of Medical History at the time of the Veteran's enlistment in the National Guard, he explicitly denied a history of frequent trouble sleeping, depression or excessive worry, or nervous trouble of any sort. In August 1989 and June 1992 Reports of Medical History, the Veteran again explicitly denied a history of frequent trouble sleeping, depression or excessive worry, or nervous trouble of any sort. Contemporaneous psychiatric examinations were normal. Post-service VA treatment records reflect that in May 2001, the Veteran began psychiatric treatment at the VA. He reported feeling increasingly angry and dysphoric regarding his ideas of racial bias and unfairness at work and in his community. He had insomnia that he blamed on his physical disabilities. He had fantasies of hurting others. He was diagnosed with an adjustment disorder with depressed mood. From February 2002 to January 2004, he received treatment for ongoing severe depression. However, in October 2004, the Veteran was positively screened for PTSD. His diagnosis changed to PTSD, chronic, with symptoms including major depression related to pain and physical disability. The Veteran's initial diagnoses of PTSD with symptoms including major depression, clearly were not made based on a description by the Veteran of his claimed in-service stressors. Indeed, March 2006 and August 2006 VA treatment records both specifically noted that the Veteran "did not want to talk about any specifics" with regards to his military stressors. Prior records, such as in March 2005, noted only that the Veteran's PTSD was not combat-related. The Veteran was afforded a VA psychiatric examination in August 2010. The examiner noted review of the claims file and medical records. The Veteran's reported stressors were that he "almost drowned" while in training at Fort Sill, Oklahoma and that he observed the death of a fellow service member in November 1974 in Butzback, Germany. Following examination, the examiner concluded that the Veteran did not meet the DSM-IV criteria for PTSD, but that he did meet the criteria for major depression. The examiner did not provide an opinion as to the etiology of the major depression. During his April 2011 Board hearing, the Veteran reported that his in-service stressors included nearly drowning during service at Fort Sill in approximately 1973 after getting a cramp while swimming. He also asserted that a "PFC Alexander" or "Cisco" died in his arms while serving in Europe. In addition, he claimed that about an hour after he left a PX in Frankfort in 1973 to 1975 that it was blown up. (In that regard, the Board takes judicial notice that a study titled "Lethal Terrorist Actions against Americans, 1973-1985" and published by the United States Department of State's Threat Analysis Division of the Diplomatic Security Service notes no terrorist incidents in Frankfort, Germany, or indeed anywhere in Europe other than Rome, Italy, Athens, Greece, and Valencia, Spain during the period specified by the Veteran. Moreover, none of the incidents in these cities were remotely similar to the event described by the Veteran.) Finally, he claimed that he came close to death in multiple training incidents, including getting his mask caught in the tank's gun turret and almost being cut in half. The Veteran was afforded a VA psychiatric examination in October 2011. The examiner concluded that the Veteran did not meet the DSM-IV criteria for a diagnosis of PTSD and diagnosed mood disorder due to chronic pain (a general medical condition) with mixed features. The examiner noted that the Veteran's first psychiatric diagnosis was adjustment disorder in 2001. On the next visit, he was diagnosed with major depression linked to his chronic pain issues. The examiner indicated that an exclusionary category for major depression was symptoms not due to the direct physiological effects of a substance or a general medication condition - such as chronic pain. As such, the examiner concluded that the diagnosis of major depression was mistaken. The Veteran first was diagnosed with PTSD in October 2004, without describing the full DSM-IV criteria. Subsequent treatment with another VA health provider included continued diagnoses of PTSD and major depression, again without discussion of the DSM-IV criteria, but extensive discussion of the Veteran's ongoing pain. During the course of examination, the Veteran reported several stressors discussed previously, including almost drowning at Fort Sill, Oklahoma, seeing the death of another soldier, and seeing a fellow soldier mutilate a prostitute with a knife. Finally, the Veteran reported generally multiple incidents of attempted suicide by fellow service members while serving in Germany. The examiner concluded that the Veteran did not have PTSD, based on a 2-hour interview of the Veteran, review of the claims file and medical records, and that the Veteran did not endorse full DSM-IV criteria for PTSD. Those who have diagnosed PTSD, the examiner noted, had not fully listed the DSM-IV criteria in their treatment records. The examiner concluded that it could not be concluded whether the currently diagnosed mood disorder was related to military service without resort to speculation. The rationale was that although the Veteran sought entitlement to service connection for physical problems within 2 years of separation from service there was no evidence he sought help for or had psychiatric issues for over 20 years after service. Moreover, there was evidence of an intervening post-service physical injury that also could have affected his psychiatric symptoms. The examiner also concluded that it would be mere speculation to attempt to link any of the Veteran's past diagnoses (such as PTSD, major depression, or anxiety disorder) to service. The rationale was that the Veteran refused to give a history of substance use or abuse in or after the military during the current examination, despite the examiner explaining that such reports were needed for the purpose of the exam. The failure to provide responses precluded any examiner from concluded that it was more likely than not that any psychiatric disorder was related to service. Even were the Veteran to report such drug or alcohol usage, the examiner concluded that it would still be mere speculation to reach any conclusion as to etiology because the Veteran did not seek psychiatric treatment for more than 20 years after service, despite bringing claims for entitlement to service connection for physical problems shortly after separation. Moreover, the Veteran did not currently meet the criteria for a diagnosis of PTSD and past diagnoses did not include sufficient documentation of the DSM-IV criteria to rely on such determinations. Finally, the subsequent onset of pain during post-service work at Anniston Army Depot made determining the etiology of psychiatric problems even more problematic. VA treatment records up to August 2013 continued the ongoing diagnosis of PTSD; however, none of these records indicated that the diagnosis was based on any in-service stressor. In December 2013 and March 2014, the Veteran underwent mental health evaluations at VA. In each case, the medical professional noted the Veteran's prior assessments of PTSD, but also concluded that the Veteran did not meet the diagnostic criteria for PTSD and diagnosed other psychiatric disorders (depressive disorder in December 2013 and major depressive disorder and pain disorder in March 2014). VA treatment records include a September 2014 negative PTSD screening test. The Veteran was afforded a VA mental health examination in October 2014 to address whether the mood disorder due to chronic pain was caused or permanently worsened by the Veteran's service-connected right foot disability. The examiner noted review of the claims file and a diagnosis of major depressive disorder, recurrent, which was due to shoulder, back/neck, and foot pain, as well as sleep apnea, headaches, and hypertension. As noted in the prior Board remand, however, the examiner went on to conclude that it was less likely than not that the Veteran's diagnosed mood disorder was caused or permanently aggravated by his service-connected right foot disability. This conclusion was inconsistent with the earlier finding that foot pain was relevant to the understanding or management of the mental health disorder. The Veteran was afforded a VA examination in June 2016 to clarify the inconsistencies in the October 2014 VA examination report. The examiner noted a current diagnosis of unspecified depressive disorder, with anxious distress. The examiner indicated review of the claims file, including the Board remands and the prior VA examination reports. The Veteran denied any in-service mental health treatment. His reported in-service stressors included almost drowning before being pulled out of the water, a vehicle in which he was scheduled to ride until the last minute flipped over and rolled down a hill with all occupants killed (the Veteran could not remember the names of any of the individuals), his sleeping bag caught fire from a heater while in Europe, almost being killed when his gas mask got stuck in the tank turret during a fire mission, an overdose and death of a fellow service member, and a superior using a racial epithet to the Veteran. Following examination, the examiner concluded that it was less likely than not that the currently diagnosed depression was caused by or permanently aggravated beyond its natural progression by the service-connected right foot disability. The rationale noted that the changed diagnosis was based on the Veteran's multiple non-pain related stressors, the multiple etiologies for pain in addition to the service-connected foot pain, and the potential for substance-induced mood-related symptoms stemming from the use of marijuana. Several non-pain related stressors were noted in the mental health records from 2001 to the present that likely contributed to the depression, including: work stress, perception of racial bias and unfairness on the job and in the community, unemployment, financial strain, deaths of family members, caregiving for mother with serious chronic medical problems, single parenting of a son, and attempts to mentor his nephew following the death of the Veteran's brother. The examiner noted that there was a documented history of chronic pain and associated functional limitations as being a primary contributor to ongoing depression. That said, the etiologies of the chronic pain were multiple and included the neck, shoulders, back, right leg, right foot, and hands. Treatment records indicated that pain complaints related to the service-connected foot condition were much less frequent and clearly subordinate to the pain complaints related to the neck, shoulder, and back pains. In addition, the Veteran was diagnosed with fibromyalgia in 2013, which also contributed to the Veteran's diffuse pain and chronic fatigue. The examiner also noted agreement with the rationales expressed in the prior VA examination reports regarding the etiology of the Veteran's psychiatric disorder being unrelated to his service-connected foot disability. Finally, the examiner concluded that there was no evidence of complaints of or treatment for depressive symptoms during service or in the years following service discharge. The first documented complaint of depression was in 2001 following a workplace injury and shortly preceding the Veteran's medical retirement. Initially, as to the Veteran's claimed PTSD, in order to warrant service connection, the threshold requirement is competent medical evidence of the existence of the claimed disability at some point during a veteran's appeal. See McClain v. Nicholson, 21 Vet. App. 319 (2007) (requirement that a current disability be present is satisfied "when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim...even though the disability resolves prior to the Secretary's adjudication of the claim"); Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992). While the Board recognizes the Veteran's sincere belief in his claims and description of his symptoms, the most competent medical evidence of record does not show that the Veteran has a diagnosis of PTSD. The Board acknowledges that certain records include assessments of PTSD; however, the Board finds the conclusions of numerous mental health professionals, both prior and subsequent to the PTSD assessments, of far greater probative weight. In addition, the Board recognizes that the Veteran was referred for PTSD group therapy. The October 2011 examiner, however, explained in detail why the Veteran's symptomatology did not support and had not supported a diagnosis of PTSD and indicated that the treatment records did not appear to have considered all relevant criteria in rendering the diagnosis of PTSD. The Board recognizes that mental health treatment providers are presumed to have considered the relevant criteria in rendering a diagnosis of PTSD or other psychiatric disorder; however, in this case there is significant evidence from multiple health care professionals that included extensive rationale as to why the Veteran did not have PTSD during the appellate time period. While the Board is sympathetic to the Veteran's contentions, it recognizes that PTSD, a complex disorder of the mental faculties, is far different from a broken arm or dislocated shoulder. While he is competent to describe his symptoms, he is not competent to diagnose the specific disorder from which he suffers. Therefore, the Board finds that the competent medical evidence of record does not show the Veteran to have PTSD at any point during the appellate time period, and there may be no service connection for the claimed disability. Even were the Board to presume a diagnosis of PTSD at some point during the appellate time period, none of these diagnoses were based on any in-service stressor or incident related to service. As noted above, on multiple occasions where PTSD was diagnosed the Veteran refused to discuss any in-service stressors and other records specifically attribute his PTSD diagnosis to non-service related stressors. As such, there is no basis on which to grant entitlement to service connection for PTSD. As to the Veteran's other diagnosed psychiatric disorders, the Board finds the VA examination reports, read in concert, of significant probative value - particularly the June 2016 VA examination report. The June 2016 examiner considered the Veteran's representations, the claims file, the prior examination reports and medical records, and conducted a psychological examination prior to rendering her opinions. Further, a complete and thorough rationale is provided for the opinions expressed. As noted, the examiner discussed the documented history of chronic pain and associated functional limitations as being a primary contributor to ongoing depression. That said, the etiologies of the chronic pain were multiple and included the neck, shoulders, back, right leg, right foot, and hands. Treatment records indicated that pain complaints related to the service-connected foot condition were much less frequent and clearly subordinate to the pain complaints related to the neck, shoulder, and back pains. In context, the examiner clearly found that the Veteran's service-connected foot disability did not cause or aggravate the diagnosed pain disorder or other psychiatric disorder. The Board finds these conclusions the most probative evidence of record as to the etiology of the diagnosed psychiatric disorders. In that regard, the Board recognizes that in February 2010 the Veteran reported increased nightmares due to his combat experiences. During this period, however, no medical professional indicated that any current psychiatric disorder was attributable to the reported nightmares and the nightmares decreased within a few months, at which time the Veteran declined treatment for the nightmares. As to the Veteran's contentions that he has a current psychiatric disorder due to his service, to include his service-connected right foot disability, whether it be PTSD or other psychiatric disorder, he certainly can attest to factual matters of which he has first-hand knowledge, such as experiencing pain, anxiety, and depression, and his assertions in that regard are entitled to some probative weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). In addition, the Board recognizes that lay persons are competent to provide opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Given the Veteran's lack of demonstrated medical expertise, the post-service occupational stressors, and the complexity of linking particular psychiatric symptoms to a diagnosed psychiatric disorder and linking that disorder to incidents occurring in service or to a service-connected disability, however, the Board concludes that in this case his statements regarding any such link between the in-service experiences or service-connected disability and a current acquired psychiatric disorder are significantly less probative than the conclusions of the medical professionals of record. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). In summary, the Board concludes that the preponderance of the evidence is against the claim for service connection, and the benefit of the doubt rule enunciated in 38 U.S.C.A. § 5107(b) is not for application. There is not an approximate balance of evidence. See 38 U.S.C.A. § 5107(b) (West 2014); see generally Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). ORDER Entitlement to service connection for an acquired psychiatric disorder is denied. ____________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs