Citation Nr: 1751318	
Decision Date: 11/09/17    Archive Date: 11/17/17

DOCKET NO.  13-21 833	)	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 major depressive disorder (MDD) and posttraumatic stress disorder (PTSD).


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

A. Norwood, Associate Counsel






INTRODUCTION

The Veteran served on active duty in the United States Army from January 1971 to April 1972. He is a Vietnam veteran. 

This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

The Veteran testified before the undersigned at a July 2017 hearing in St. Petersburg, Florida; a transcript of the hearing has been associated with the claims file.  


FINDING OF FACT  

The evidence of record fails to demonstrate that an acquired psychiatric disorder is etiologically related to the Veteran's active service. 


CONCLUSION OF LAW

The criteria for service connection for an acquired psychiatric disorder have not been met. 38 U.S.C.A. § 1101, 1112, 1116, 5107 (West 2014); 38 C.F.R. § 3.303, 3.304, 3.307, 3.309 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Veterans Claims Assistance Act of 2000

Initially, the Board notes that the Veteran has been provided all required notice and that the evidence currently of record is sufficient to substantiate his claim for entitlement to service connection for an acquired psychiatric disorder. Therefore, no further development with respect to the matter decided herein is required under 38 U.S.C.A. §§ 5103, 5103A (West 2014) or 38 C.F.R. § 3.159 (2017). Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001).

II. Service Connection

The Veteran contends that service connection is warranted for MDD and PTSD as the condition was incurred due to stressful events during active duty service, to include the Veteran's handling of explosive devices in the Republic of Vietnam.  

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Generally, service connection requires (1) the existence of a present disability; (2) in-service incurrence or aggravation of an injury or disease; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).

Certain chronic diseases may be presumed to have been incurred during service if the disorder manifests to a compensable degree within one year of separation from active duty. 38 C.F.R. § 3.309(a). In this case, the Veteran has been diagnosed with MDD and PTSD. However, those disorders are not considered to be a "chronic disease" under 38 C.F.R. §§ 3.309, 3.384 (2017). Therefore, service connection for an acquired psychiatric disorder on a presumptive basis is not warranted. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Even though presumptive service connection is not warranted, the Veteran is not precluded from establishing service connection for a diagnosed disability with proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994).

With regard to PTSD, service connection for PTSD requires: (1) medical evidence establishing a diagnosis of the disorder; (2) credible supporting evidence that the claimed in-service stressor occurred; and (3) a link established by medical evidence, between current symptoms and an in-service stressor. See 38 C.F.R. § 3.304(f) (2017); Cohen v. Brown, 10 Vet. App. 128, 139 (1997). The PTSD diagnosis must be made in accordance with the criteria of Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV) or the Fifth Edition (DSM-V). See 38 C.F.R. § 4.125 (a) (2009-2016).

Effective July 13, 2010, 38 C.F.R § 3.304(f) was amended to reduce the evidentiary burden of establishing a stressor when it is related to a fear of hostile military or terrorist activity. See 75 Fed. Reg. 39843 (July 13, 2010), codified at 38 C.F.R.       § 3.304(f)(3). Under the amended regulation, service connection for PTSD may be granted if the evidence demonstrates: (1) a current diagnosis of PTSD (rendered by an examiner specified by the regulation); (2) an in-service stressor consistent with the places, types, and circumstances of service (satisfactorily established by lay testimony) that has been medically related to the Veteran's fear of hostile military or terrorist activity by a VA psychiatrist or psychologist, or one contracted with by VA; and (3) evidence that the Veteran's PTSD symptoms have been medically related to the in-service stressor by a VA psychiatrist or psychologist, or one contracted with by VA. 75 Fed. Reg. 39843, 39852 (July 13, 2010).  

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A.     § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant.

In this case, the record clearly establishes current diagnoses for MDD and PTSD, as VA and private treatment records document diagnoses of both conditions. The Veteran and his wife, as well as his friends, have also provided statements in support of the claims describing the Veteran's episodes of anger, hypervigilance, and suicidal ideation, as well as other mental health symptoms. Thus, this medical and lay evidence establishes the presence of MDD and PTSD.  

The Veteran served in the Republic of Vietnam and personnel records establish that although he was initially appointed as a personnel specialist, he was appointed as an Explosive Ordnance Disposal (EOD) team member to work with explosives effective February 1972. He reports that as a result of his duties, he experienced stressors due to fear of hostile military activity. The Board finds that these events are consistent with the places, types, and circumstances of the Veteran's service. 

Regarding the third element of service connection, a nexus between the Veteran's current disabilities and the in-service injury, the evidence of record does not indicate such a link. Service records are negative for any findings or treatment for an acquired psychiatric disorder. The Veteran did not report experiencing any specific psychiatric symptoms during active duty or developing such symptoms until after discharge from active duty service. The April 1972 separation examination also does not indicate that any psychiatric abnormality was identified. Thus, the contents of the Veteran's service records do not support his contentions regarding the incurrence of a chronic psychiatric disorder during active duty service.

Post-service treatment records also weigh against the claim for service connection.  VA and private treatment records are negative for evidence of a psychiatric condition until November 2010, nearly 40 years after service, when the Veteran was referred from his primary care physician to the VA for a psychology consultation for anxiety and PTSD symptoms. In April 2011, the Veteran presented to a VA examination with complaints of depressed mood, suicidal ideation, and mood swings. In October 2013, the Veteran also underwent a psychological evaluation by a private mental health care provider in which he reported having flashbacks, social withdrawal, depressed mood, anhedonia, insomnia, decreased appetite, and suicidal ideation. Lay statements dated January 2011, as well as the Veteran's July 2017 testimony, date the beginning of his mental health problems to his return to Chicago from Vietnam.                   .    

The weight of the competent medical evidence is also against the claim for service connection. The only opinions addressing the etiology of the Veteran's MDD and PTSD are that of the April 2011 VA examiner. The examiner diagnosed the Veteran with depressive disorder, NOS and indicated that his symptoms were related to alcohol dependency, which is not service connected. The examiner noted that "[i]t would be with resort to mere speculation to separate alcohol effects from the diagnosed mental disorder as even moderate doses of alcohol contribute to depressive affect, anxiety, and irritability." The examiner concluded that any further opinion could not be offered, as a diagnosis of PTSD was not confirmed during the evaluation. The examiner noted that there was no objective evidence to form a nexus between the Veteran's present complaints and previous military experiences. Although the Veteran was subsequently diagnosed with PTSD, this opinion was based on a thorough review of the Veteran's medical history and service records. The opinion is accompanied by a fully explained rationale and is of great probative value.  See Nieves- Rodriguez, supra.  

The Veteran's October 2013 private examiner noted that he had been commissioned on multiple occasions to evaluate soldiers who were involved in combat from conflicts. Although the examiner diagnosed the Veteran with major depression and PTSD, he did not provide an opinion regarding causation between the Veteran's conditions and his service. 

The Board has considered the Veteran's statements, as well as statements from his wife and friends, attributing his current chronic psychiatric disorders to service, but as lay persons, they are not competent to opine as to medical etiology or render medical opinions. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Grover v. West, 12 Vet. App. 109, 112 (1999). The Board acknowledges that the Veteran and his wife and friends are competent to describe observable symptoms, but finds that their opinions as to the cause of the symptoms simply cannot be accepted as competent evidence. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1131, 1336 (Fed. Cir. 2006). Therefore, these statements linking the Veteran's current MDD and PTSD to service are outweighed by the other evidence against the claim, including the medical opinion of the April 2011 VA examiner.




In sum, although the Board finds that current psychiatric diagnoses are present in this case, along with competent reports of in-service events, the evidence weighs against a finding of a link between the Veteran's diagnoses and their purported stressors. The weight of the competent evidence, including the service treatment records and competent medical opinion, is against the finding of a nexus between the currently diagnosed MDD and PTSD and the Veteran's in-service stressors. Accordingly, the Board must conclude that the preponderance of the evidence is against the claim and it is denied. 38 U.S.C.A. § 5107(b) (West 2014). As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).


ORDER

Entitlement to service connection for an acquired psychiatric disorder, to include MDD and PTSD, is denied.



____________________________________________
M.H. HAWLEY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs