Citation Nr: 1751255 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 08-28 562 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his Case Manager ATTORNEY FOR THE BOARD Y. Taylor, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1974 to October 1977. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The Veteran and his VA case manager testified before the undersigned during an October 2010 Travel Board hearing at the RO; a transcript is of record. The Board previously remanded this case for additional development in February 2011, June 2014, August 2015, and February 2017. The case has been returned to the Board for appellate review. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing system. Accordingly, any future consideration of the Veteran's case should take into account the existence of this electronic record. FINDING OF FACT The competent and probative evidence does not establish that the Veteran has a current diagnosis of acquired psychiatric disorder, to include PTSD that was incurred in or aggravated by active service. CONCLUSION OF LAW The criteria for service connection for an acquired psychological disorder, to include PTSD, have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.125 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims 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 (West 2014); 38 C.F.R. § 3.159 (2016). If the VCAA is applicable, the Board must ensure that the required notice and assistance provisions of the law have been properly applied. VA satisfied its duty to notify the Veteran pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A. §5103 (West 2014); 38 C.F.R. § 3.159(b) (2016). VA provided the required a general VCAA notice in May 2007 and another VCAA notice specific to PTSD in August 2007, prior to the initial adjudication and readjudication of the claim in a supplemental statement of the case (SSOC). See Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2007) (VCAA notice must generally be provided prior to the initial rating decision). VA also satisfied its duty to assist the Veteran in developing his claim. 38 U.S.C.A. § 5103A (West 2014). The RO associated all available service treatment records (STRs), service personnel records (SPRs), and VA treatment records with the claims file. The Veteran was also provided with a VA examination in June 2016 as required by the August 2015 Board remand and an addendum opinion in May 2017 as directed by the February 2017 Board remand. The examination is adequate, since the examiner reviewed the Veteran's medical history, including his STRs, interviewed and examined the Veteran in person, and provided sufficiently detailed findings concerning his various psychiatric conditions. Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007); Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once VA undertakes the effort to provide an examination when developing a claim, even if not statutorily obligated to do so, VA must ensure that the examination provided is adequate). For reasons discussed in further detail below, the Board also finds the May 2017 addendum opinion adequate. Therefore, the above actions constitute substantial compliance with the prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As the Veteran has not identified any additional evidence relevant to the claim and as there are no additional records to obtain, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claims is required to comply with the duty to assist. 38 U.S.C.A. § 5107(a) (West 2014). II. Service Connection Generally, service connection means that a veteran has a current disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a) (2016). Service connection may be granted for any disease diagnosed after discharge when the evidence shows that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2016). Service connection for PTSD has unique evidentiary requirements. It generally requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304 (f). See also Cohen v. Brown, 10 Vet. App. 128 (1997). Even when a diagnosis of PTSD is not applicable, service connection could be established for an acquired psychiatric disorder directly. In order to establish service connection for an acquired psychiatric disorder, the evidence of record must include a medical diagnosis of a mental disorder in accordance with 38 C.F.R. § 4.125; 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). If a preponderance of the evidence supports a claim, or if a claim is in relative equipoise, the claimant shall prevail. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). If a preponderance of the evidence is against a claim, it will be denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). If there is an approximate balance of positive and negative evidence regarding any material issue, the benefit of the doubt goes to the claimant. Gilbert, 1 Vet. App. at 53-54. The Veteran originally filed a claim for service connection for PTSD in May 2007. The Veteran claimed that an altercation occurred in February 1976 while in service contributed to his reported PTSD. See May 2010 Statement in Support of Claim for Service Connection for PTSD. He reported that when he asked a man in the next door to his room if he could borrow a buffing machine, this man said a racial remark at him. The man, as the Veteran described, stepped forward in the hallway and slapped him in the face. The Veteran reacted and struck him with a fingernail clipper in his possession at the time. In addition to PTSD, the Veteran's medical evidence of record refers to other various psychiatric conditions such as bipolar disorder, organic affective disorder, major depressive disorder, anxiety, mood disorder, and adjustment disorder with mixed features, attention deficit disorder, and unspecified personality disorder. See, e.g., February 2011, April 2014, August 2015, and February 2017 Board Remands. To ascertain what disorders the Veteran currently has and whether any of the psychiatric disorders is related to his service, the Board requested an addendum opinion to the June 2016 PTSD examination in its February 2017 remand. The addendum opinion was completed by the same clinical psychologist who conducted the June 2016 VA examination. The examiner reviewed the Veteran's military service treatment records, military service personnel records, military enlistment examination, military separation examination, DD 214 separation documents, and the Veteran's claims file and conducted an in-person examination with the Veteran. In the June 2016 examination, the examiner opines that the Veteran's report of mental health issues during the examination did not conform to any psychiatric diagnoses in accordance with the DSM-V except for substance use disorders. Further, the examiner noted that the Veteran's VA medical records revealed inconsistent reporting of stressful experiences and associated symptoms over many years where primary stressful experiences occurred either before (i.e., childhood abuse) or after (i.e., 2001 reported carjacking) his military service. The examiner found that the Veteran did not have a current diagnosis of PTSD, but he did have a diagnosis of unspecified mood disorder. In the February 2017 remand, the Board found this examination inadequate for two reasons. First, the examination was found inadequate because it failed to address all the psychiatric disorders of which the Veteran has been diagnosed, provisionally or not, as of the claim's filing date, May 2007. Second, the examination was determined insufficient because it failed to address psychological impacts of the stressor incidents including childhood experiences, in-service altercation, and the car-jacking incident. Therefore, the Board remanded for an addendum opinion to address the above issues. In May 2017, the addendum opinion was completed by the examiner who conducted the June 2016 VA examination. The examiner thoroughly reviewed the Veteran's claims file and available records in its entirety including the October 2010 hearing transcript and provided his opinion as to what psychiatric disorders the Veteran is having and whether each psychological condition is related to the Veteran's service. Further, the examiner thoroughly evaluated each stressor event listed in the remand. The Board finds that the May 2017 addendum opinion meets the requirements of its February 2017 remand and that the June 2016 VA examination as well as its May 2017 addendum opinion is credible and probative since it is written by a competent examiner specializing in clinical psychology and it is consistent with the evidence of record - nothing in the evidence contradicts the finding of the medical examiner. In the May 2017 addendum opinion, the examiner listed the following psychological conditions that could be applicable to the Veteran, either based on his medical records or the examiner's in-person interview: depressive disorder; bipolar disorder; cognitive disorder; organic affective disorder; attention-deficit disorder; unspecified personality disorder; chronic PTSD; provisional PTSD; cocaine dependence, in remission; alcohol dependence, in remission; cannabis dependence, continuous; anxiety; mental disorder; and recurrent major depression. The examiner assesses how each of the disorders listed above in the Veteran's medical record was mentioned or diagnosed, examines how a diagnosis of or referral to the disorder arose in the record, and opines whether each disorder is less likely than not that the disorder at issue was caused by or result of the Veteran's military service. In particular, the examiner analyzed the transcript of the October 2010 Board hearing, considered the Veteran's description of his mental health symptoms, and concluded that the Veteran's condition as described by the Veteran did not meet the requirements of a diagnosis of PTSD. Further, the examiner opines that the initial PTSD diagnosis, as first entered in the medical record completed by a social worker in January 2008 who suggested a referral to PTSD consultation, might have been in error because the Veteran was after all denied admission to the PTSD pre-cohort group shortly after the referral because a psychologist concluded that there was insufficient information to support a diagnosis of PTSD. In general, the examiner finds that a review of the available notes in which subsequent providers memorialized the symptoms the Veteran reported did not note a sufficient number of symptoms to meet the full DSM criteria for PTSD. The examiner also notes that for a significant number of the episodes of care documented in the Veteran's medial record, there is no mention of any diagnostic assessment, but rather a stated reliance on prior history, which heavily depends on the Veteran's self-report. Those document, the examiner continues, an insufficient number of symptoms for establishing or affirming a diagnosis of PTSD. The only exception is the current psychotherapy provider for the Veteran who characterized the Veteran's report of trauma-related symptoms as potentially fulfilling a provisional diagnosis of PTSD, but this provisional diagnosis is "a far cry from affirmatively establishing the diagnosis" for the Veteran, the examiner concludes. In summary, the examiner states that based on the comprehensive review of the Veteran's full medical records, VBA records, and targeted clinical interview from the June 2016 VA examination, the diagnoses that the Veteran can be considered to meet to a reasonable degree of medical certainty include: cannabis use disorder; alcohol use disorder, in remission; cocaine use disorder, in remission; rule-out unspecified mood disorder; rule-out unspecified personality disorder. Based on the medical evidence of record and interpretations provided by a psychology expert, the Board finds that the Veteran does not have a current diagnosis of PTSD or any acquired psychiatric disorder listed in 38 C.F.R. § 4.130 that is related to service. Absent evidence of such a current disability, a claim for service connection must be denied. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Therefore, the first element of service connection has not been met and thus, entitlement for the service connection for an acquired psychiatric disorder, to include PTSD is denied. ORDER Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs