Citation Nr: 1751522 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 11-05 531 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for a psychiatric disability to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from September 1965 to October 1968. This case previously before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). The case was remanded for additional development in December 2013 and January 2017 and is now ready for appellate review. In February 2013, the Veteran was afforded a videoconference hearing before the undersigned. FINDINGS OF FACT 1. A valid diagnosis of PTSD due to an in service stressor is not shown. 2. A current acquired psychiatric disorder is not caused or aggravated by an in-service disease or injury. CONCLUSION OF LAW The criteria for service connection for a psychiatric disability to include PTSD are not met. 38 U.S.C.A. §§ 1110, 5103(a), 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.304, 4.125 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Notice and Duty to Assist/Standard of Review VA has met all statutory and regulatory notice and duty to assist requirements. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). In this regard, while the undersigned has considered the September 2017 request from the Veteran for another VA examination to address his claim, the addendum opinion requested in the most recent remand reflects substantial compliance with the January 2017 remand directives, and the examinations and opinions afforded the Veteran in the course of this appeal, in their totality, are adequate to adjudicate the Veteran's claim. When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the U.S. Court of Appeals for Veterans Claims held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. II. Analysis Service connection will be granted for 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. Service connection may be granted for any disease diagnosed after discharge from 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 requires evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; 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, 1167 (Fed. Cir. 2004). Entitlement to service connection for PTSD requires (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) credible supporting evidence that a claimed in-service stressor 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 Cohen v. Brown, 10 Vet. App. 128 (1997). A diagnosis of PTSD must be established in accordance with 38 C.F.R. § C.F.R. § 4.125(a), which mandates that, for VA purposes, all mental disorder diagnoses must conform to the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM). See 38 C.F.R. 3.304(f). A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Specifically, lay evidence may be competent and sufficient to establish a diagnosis where (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d at 1377; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A layperson is competent to identify a medical condition where the condition may be diagnosed by its unique and readily identifiable features. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App 370, 374 (2002). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). Although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The service treatment reports (STRs), to include the reports from the September 1968 separation examination, are silent for a psychiatric disability or symptoms thereof. The Veteran's DD Form 214N reflects a military occupational specialty, engine mechanic. The records reflects the Veteran reporting in-service stressors to include witnessing a Marine pull a gold tooth from the mouth of a dead Vietnamese soldier; seeing children burned; and being under fire while aboard his ship. The Veteran has also reported witnessing "the battles and people getting killed" on the Vietnam shore while serving aboard the U.S.S. Calvert as "an [e]ngineman" working on "mike boats." See August 2009 Statement; November 2010 Statement; February 2013 Hearing Transcript at 5, 10-11. The LCM-8 ("Mike Boat") is a river boat and mechanized landing craft used by the United States Navy and Army during the Vietnam War and subsequent operations. The Veteran's personnel records show that he served aboard the Calvert form November 1965 to June 1966. The ships history shows that from November 1965 to January 1966 the ship was at DaNang and sent crew members ashore. There is no other record indicating that the Veteran was ashore in Vietnam during his active service. The RO rendered a determination in August 2009 that that there was insufficient evidence to refer the Veteran's case to the U.S. Army and Joint Services Records Research Center to verify the occurrence of the Veteran's claimed stressors. VA treatment records dated in 2009 and 2010 show that the Veteran participated in PTSD group therapy and that his problem list included PTSD and adjustment disorder. In December 2010 the diagnoses included adjustment disorder, but not PTSD. A January 2011 VA psychiatric examination-while noting that Veteran's score on a PTSD diagnostic test (PCL-M) was consistent with a diagnosis of PTSD, and that he had a score consistent with severe depressive symptoms that could "go hand in hand" with PTSD-concluded that the criteria for a diagnosis of PTSD under DSM were not met. In this regard, the examiner stated as follows: For almost a decade, the [V]eteran reported that he experienced no negative symptoms related to his military experience. He appears overall to have been generally able to function well in his daily life since the military with a couple of notable most likely transient exceptions. Recent symptoms appear to have been exacerbated by his forced retirement and his daughter's fatal overdose. The Veteran does report a history of some tendencies towards ineffective coping [] but [he] also possesses multiple positive and effective coping strategies (e.g. faith volunteering supportive relationships photography fishing). Nonetheless, he does appear to be presently experiencing some symptoms of mild depression more likely than not due to his recent forced retirement and loss of his daughter . . . The January 2011 examiner did diagnose the Veteran with Adjustment Disorder with Depressed Mood. At his hearing, the Veteran reported numerous stressors of a combat nature related to being in Vietnam and its inland waters. He indicated that he had not been given a PTSD diagnosis. The December 2013 remand sought to obtain recent treatment records reported by the Veteran and clarification as to whether the January 2011 VA examiner had considered the Veteran's reports concerning his stressors and the timing of his symptoms as contained in the VA treatment records. The Board noted that the Veteran provided additional information in this regard during the February 2013 Board hearing, which the examiner would not have had the opportunity to consider. As such, the remand sought an addendum opinion from the January 2011 VA examiner or a suitable substitute that identified all currently diagnosed psychiatric disorders, to specifically include an explanation as to why the criteria for a DSM diagnosis of PTSD were or were not met. The remand also sought an opinion as to whether any current psychiatric disorder was as likely as not related to service, to include the Veteran's reported incidents aboard the U.S.S. Calvert. The Veteran did not respond to requests that he identify additional treatment. The opinion sought in the December 2013 remand, was rendered by a different mental health professional in February 2014. It was again concluded that the criteria for a DSM diagnosis of PTSD were not met, with the clinician explaining in this regard as follows: Specifically, [the Veteran's] report of stressors/trauma (criteria A) are insufficient to qualify as significant traumas since he neither directly experienced these events personally or as they occurred to others (i.e., the children). While unpleasant, these experiences not rise to the standard of nature or severity necessary for Criteria A. Although he does not meet the requisite Criteria A for a diagnosis of PTSD, the [V]eteran's other reported symptoms were included for demonstration purposes: specifically, he endorsed no symptoms from Criteria D (Negative alterations in cognitions and mood). Thus, even had his reported stressors met the standard for Criteria A, the lack of reported symptoms from Criteria D would still preclude a diagnosis of PTSD. Finally, the [V]eteran was administered an objective measure of emotional and psychological functioning, the MMPI-2-RF, to which his response pattern is suggestive of over-reporting of affective symptoms as well as his report of difficulty coping/adjusting to stressors. His response pattern is much higher than what is typically seen in combat Veterans with PTSD, anxiety, or those with Major Depressive Disorder (MDD) and more consistent with exaggerating of emotional distress. He is also reporting an incredulously low ability to cope with psychosocial stressors. There is no evidence at all of random responding on the measure, suggesting that his approach to the instrument was a result of an attempt to appear more impaired that what may actually the case. Of note, the [January 2011 VA psychiatric examination] did not utilize objective measures of psychological/emotional functioning, but rather self-report measures without objective validity indicators[,] thus likely explaining the inconsistent findings between self-report of functioning (i.e., testing) versus known history (i.e., working 37-years without major difficulties, maintenance of friends and leisure activities throughout the years). As a result of the overall examination, it is the opinion of this examiner that the [V]eteran does not meet the diagnostic criteria required for a diagnosis of PTSD. This does not preclude the presence of another emotional/psychological disorder however due to his invalid approach to psychological testing, his overall self-report can not be taken at face-value and therefore any opinion regarding other possible diagnoses would be purely speculative. In June 2014, a friend who had served in Vietnam, reported that he had known the Veteran for 33 years. He reported that the Veteran "lived in a dark cloud every day" and had nightmares attributable to Vietnam. The January 2017 remand found the February 2014 examination to be inadequate because it did not consider the Veteran's reports of in-service stressors including witnessing battles and seeing people killed. Clarification was also needed to clarify whether prior diagnoses that were not found on the current examination had been made in error or the disabilities had resolved. See Romanowsky v. Shinseki, 26 Vet. App. 303 (2013). The Board sought clarification from the February 2014 examiner or a suitable substitute that considered these stressors, to specifically include the Veteran's report of "witnessing battles and people getting killed on shore while serving aboard his ship." The January 2017 remand also requested that the clinician clarify whether the Veteran met the criteria for PTSD or any other psychiatric disability since 2010, and clarify whether a psychiatric disorder other than PTSD was caused or aggravated by service. The clarification was provided by the same mental health professional as the February 2014 examiner, was as follows: Please note that the previously rendered opinion of this provider did "consider the [V]eteran's report [of in-service stressors]" that was provided at the time of the [February 2014] evaluation as well as in the previous evaluation. (Emphasis added) However, it was nonetheless the opinion of two separate [VA] examiners (2011 and 2014) that his report of experiences and subsequent symptoms were less likely than not sufficient to meet the full criteria for a diagnosis of PTSD at any time, including since 2010. It was noted by the [January 2011] examiner . . . that psychological testing was "consistent with a diagnosis of PTSD." However, it is noted that the examiner did not subsequently diagnose PTSD, most likely because psychological testing alone should not be used as the sole basis for a mental diagnosis, but must be taken into the context of the overall evaluation. In the [V]veteran's case, he was noted to be depressed (mildly) regarding more recent psychosocial stressors including a "forced retirement" as well as his daughter's passing away from an overdose. These non-military-related stressors were more likely than not the primary drivers of his elevated psychological test scores at the time. The diagnos[i]s provided [by the January 2011 examiner] was Adjustment Disorder with Depressed Mood . . . which [is] unrelated to any military experience (i.e., these are not caused by or exacerbated by any event in the service). (Emphasis added). As indicated at the time of the 2014 [VA examination], the [V]eteran's report of psychological functioning was grossly exaggerated, so it was not possible to determine if his psychological functioning had improved in the time since the 2011 evaluation. The Board finds the January 2017 opinion-which is documented to have been based on the Veteran's electronic medical record and is supported by adequate rationale-to be definitive as to the matter of whether the Veteran has a valid DSM diagnosis of PTSD or a psychiatric disorder other than PTSD that is etiologically related to service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). In making this determination, the Board notes to the extent the Veteran asserts that he has a valid DSM diagnosis of PTSD or a psychiatric disorder other than PTSD that is etiologically related to service, as a layperson, he is not competent to make such assertions. Woehlaert, supra. In a statement received in September 2017, the Veteran contended that he should be afforded another examination, but there has been no specific argument as to why the combined psychiatric opinions are inadequate. At this point repeated evaluations and testing have failed to show that the Veteran has current PTSD. Although earlier evaluations did yield findings of other psychiatric disabilities, subsequent opinions have provided persuasive reasons for concluding that those diagnoses were made in error. The earlier reports of PTSD during VA treatment are less probative, because there is no explanation as to how the diagnosis was arrived at. The treatment records also show that PTSD was discarded as a diagnosis later in the Veteran's treatment. The VA examiners discussed the criteria and relied on extensive psychological testing; and the evidence weighs against finding any other current psychiatric disability. Similarly, the treatment records provide no explanation as to the basis for the assessment of adjustment disorder; while the examination reports and addendum do contain discussion as to how the Veteran was not shown to have a current disability. The statement from the Veteran's friend provided competent information as to the Veteran's state of mind and nightmares; but does not establish a current psychiatric disability. The VA examiners had access to the statement in concluding that a current diagnosed disability was not shown. Given the above and in short, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for a psychiatric disability to include PTSD. As such, this claim must be denied. Gilbert, supra. ORDER Service connection for a psychiatric disability to include PTSD is denied. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs