Citation Nr: 1752552 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 14-05 918 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a psychiatric disability, other than PTSD, claimed as adjustment disorder, anxiety disorder and depression. REPRESENTATION Veteran represented by: Joseph Kundrat, Agent ATTORNEY FOR THE BOARD M. Young, Counsel INTRODUCTION The Veteran had active military duty from September 1973 to October 2003, when he retired. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The Board notes that the June 2010 rating decision denied service connection for PTSD and anxiety with depressed mood. Within one year after he was notified of the June 2010 rating decision, the Veteran submitted new and material evidence to support the claims. Therefore, such matters require de novo review. See 38 C.F.R. § 3.156(b). In his February 2014 Substantive Appeal the Veteran requested a Travel Board hearing. In January 2015 he notified the RO that he wanted to withdraw his request for a Board hearing. Accordingly, his request for a Board hearing is withdrawn. 38 C.F.R. § 20.704(e). Under Clemons v. Shinseki, 23 Vet. App. 1 (2009), generally a claim of service connection for a diagnosed psychiatric disability encompasses all psychiatric disabilities shown by the record, however diagnosed. As such, the Board has expanded the Veteran's claim for service connection for PTSD to include generalized anxiety disorder and depression. FINDINGS OF FACT 1. The probative evidence of record does not reflect a current diagnosis of PTSD conforming to the Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition or Fifth Edition; an in-service stressor sufficient to cause PTSD has not been verified. 2. The Veteran's psychiatric disabilities other than PTSD are reasonably shown to be related to experiences incurred during military service. CONCLUSIONS OF LAW 1. Service connection for PTSD is not warranted. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 2. Service connection for a psychiatric disability other than PTSD is warranted. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. The VCAA applies to the instant claims. As a preliminary matter, the Board has reviewed the Veteran's record and finds that there exist no deficiencies in VA's duties to notify and assist that would be prejudicial and require corrective action prior to a final Board determination. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159; Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (corrective action to cure a 38 C.F.R. § 3.159(b) notice deficiency); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (timing of notification). However, inasmuch as this decision grants service connection for a psychiatric disability other than PTSD, there is no reason to belabor the impact of the VCAA with respect to that matter, as any notice or duty to assist omission is harmless. Legal Criteria, Factual Background and Analysis Service connection may be granted for disability due to disease or injury incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. To substantiate a claim of service connection, there must be evidence of a current claimed disability, incurrence or aggravation of a disease or injury in service, and a nexus between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1153, 1166-67 (Fed. Cir. 2004). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). Where a condition noted during service is not shown to be chronic or where the diagnosis of chronicity may legitimately be questioned, a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a). The theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Disorders first diagnosed after discharge may be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Service connection for PTSD requires (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). A Veteran's testimony, by itself, can establish the occurrence of an in-service stressor event if the requirements of 38 C.F.R. § 3.304(f)(3) are met. The revised 38 C.F.R. § 3.304(f)(3) reduces 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 through 39852 (July 13, 2010). Effective on July 13, 2010, 38 C.F.R. § 3.304(f)(3) (stressor related to prisoner-of-war (POW) experience) and (f)(4) (stressor of in-service personal assault) were renumbered, respectively as (f)(4) and (f)(5), and a new (f)(3) was added which reduces 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 through 39852 (July 13, 2010). The revised 38 C.F.R. § 3.304(f)(3) provides that 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 PTSD 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. 38 C.F.R. § 3.304(f)(3). For purposes of 38 C.F.R. § 3.304(f)(3) "fear of hostile military or terrorist activity" means that a Veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the Veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness or horror. 75 Fed. Reg. 39843, 39852 (July 13, 2010). In substance, under the revised 38 C.F.R. § 3.304(f)(3), service connection can be granted for PTSD if the evidence demonstrates a current diagnosis of PTSD (rendered by an examiner specified by the regulation); 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, PTSD symptoms have been medically related to the in-service stressor by a VA psychiatrist or psychologist, or one contracted with by VA. VA employs the nomenclature in the rating schedule based upon the Diagnostic and Statistical Manual of Mental Disorders for purposes of evaluating psychiatric disorders. See 38 C.F.R. § 4.130. For cases certified to the Board on or after August 4, 2014, a diagnosis of PTSD must be in accordance with the American Psychiatric Association, Diagnostic and Statistical Manual for Mental Disorders, Fifth Edition (DSM-V). 38 C.F.R. § 4.125(a); Schedule for Rating Disabilities-Mental Disorders and Definition of Psychosis for Certain VA Purposes, 80 Fed. Reg. 14,303 (March 19, 2015) (updating 38 C.F.R. § 4.125 to reference DSM-V). In the present case, the claim was certified to the Board prior to August 4, 2014. Therefore, in this case 38 C.F.R. §§ 4.125 and 4.130 require there to be a current diagnosis for PTSD conforming to the criteria set forth in DSM-IV. Lay evidence may be competent evidence to establish incurrence. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (e.g., a broken leg), (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. Laypersons are competent to provide opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge. See Jandreau v. Nicholson, 492 F.3d 1372 Fed. Cir. 2007). When there is an approximate balance of positive and negative 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. When all of the evidence is assembled, 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran essentially contends he has a psychiatric disability that includes PTSD, adjustment disorder, anxiety disorder and depression due to his military service. Regarding the claimed PTSD, the Veteran contends that he has PTSD that is causally related to his active service. In June 2010 he submitted a VA Form 21-0781, Statement in Support of Claim for Service Connection for PTSD, wherein he reported non-combat inservice stressors. Specifically, as a "Casualty Assist Call Officer, he had to notify families and loved ones of the death and/or serious injury of a service member, as well as view the remains of fellow soldiers at the mortuary, and coordinate funerals and memorial services. At times the remains were very badly mangled and in separate bags within the casket; he stated that has affected him "to this day." He reported that he has nightmares, anxiety attacks, inability to sleep and some depression when he remembers what took place in carrying out his duties in service. Another stressor occurred while he served in the training battalion at the School of Infantry. During that time he witnessed numerous training accidents (lost limbs and fingers) and deaths. As a tactical advisor he was present on the "all live fire ranges" during training and was an eye-witness. In one incident, an instructor was killed in a freak accident involving a weapon that exploded and severed the arm of another serviceman. He noted that he always think about if he had given a better safety brief those incidents would not have happened; he stated, "It bothers me to this day." It has caused him to have stress, mood changes, problems sleeping and thinking about whether he did the right thing so that the soldiers could go to war and return. "And I know some did not return from war which bothers me daily." He reported that during his assignment years from 1987 to 1990 he witnessed between 15 to 20 injuries and a death. In A December 2014 stressor statement, the Veteran included the description of another inservice stressor. He reported that he was stationed in Japan with Weapons Platoon (machine gunner), Echo Company, 2nd Battalion, 9th Marines, 3rd Marine Division. After he transferred from that division he learned that fellow Marines from his weapons platoon were killed or missing in action in Cambodia during the rescue of the SS Mayaguez; three of his platoon mates ([REDACTED] Team) were left on the island after all units had withdrawn to ships. They were not rescued; they were captured and executed by the Khmer Rouge Forces. The Veteran stated that he always felt that he could have done more if he had been there with his friends. This haunted him (depression, nightmares and anxiety) from "1975 to his day" that a rescue mission was not launched to save his friends who were left to die. In May 2010 the Veteran underwent a VA psychiatric assessment (by a staff psychiatrist). His chief complaint at that time was anxiety. He reported he had not been sleeping well. He had been "feeling worse," and having relationship discord with his wife. He had been worried about "formal [sic] troops," watching the news. He reported that he served in the Marines for 30 years and was exposed to combat in Cambodia Mia West. He denied any combat on a ship. He stated that "helicopter friends and 17 people died, some were friend[s]." He stated that during that time he felt his life was in danger, he stated "I was 18 years old, didn't know better[.]" On mental status examination, he was oriented to time, place, and personal information. His speech and motor were normal. His mood was described as "alright right now[.]" The diagnoses were PTSD non-combat related and depressive disorder, NOS. In a February 2010 VA memorandum of formal finding on a lack of information required to verify stressors in connection with PTSD claim, VA determined that the information required to verify the stressful events described by the Veteran are insufficient to research the case for a U.S. Marine Corps record. Specifically the Veteran reported that his PTSD is a result of combat training and operational tempo stress during 30 years of service. He also claims that worry over troops that he trained who now face combat causes his PTSD. Information obtained through efforts to verify the Veteran's reported stressful events include review of the Veteran's DD Form 214 [Report of Separation from Active Duty], which shows no decorations, medals badges, citations or ribbons indicating combat. Moreover, his DD Form 214 indicates he had no foreign service. In a July 2010 VA memorandum of formal finding concerning verification of stressors in connection with PTSD claim, VA determined that the reported stressor of being assigned as a Casualty Assist Call Officer is verified. On October 2010 VA initial evaluation for PTSD examination, the Veteran presented a "stressor letter", which noted that he was involved in informing families to inform them of the death of their loved ones. He stated he frequently went to the morgue to help identify bodies; that was the stressor he presented during the evaluation. He reported having struggles with nightmares; he had nightmares 4 to 5 times a week. The nightmares are of "troops, casualty calls, dreading the phone even ringing." His sleep is very restless and he sleeps approximately 5 to 6 hours per night. He uses a CPAP [continuous positive airway pressure] machine. He does not like being around people or friends. He is cordial with his wife. He has a difficult time connecting with others. On mental status examination, he was alert and fully oriented. His overall mood appeared agitated. His affect was guarded. His speech was moderate in rate and tone. His thought process was logical and goal oriented. The diagnosis was anxiety disorder, NOS [not otherwise specified]. He had a Global Assessment of Functioning (GAF) score of 55 (50 for the past year). The examiner noted that the Veteran appeared to meet the DSM-IV diagnostic criteria for anxiety disorder, NOS. However, he did not endorse the required symptoms for a full diagnosis of PTSD (at the time of the examination). The Veteran showed some struggles with depression, nightmares, intrusive thoughts and sleep difficulties. He noted relationship difficulties with his wife and children. The examiner opined that it is most likely the Veteran's struggles with anxiety are the result of his retirement with an exacerbation of difficulties with anxiety and intrusive thoughts and nightmares occurring after his retirement that was brought on by his experiences in the military. In an October 2014 Mental Disorders (other than PTSD and Eating Disorders) Disability Benefits Questionnaire (DBQ) by the Veteran's private physician, Dr. R.D., generalized anxiety disorder was diagnosed (it was indicated in the DBQ that "no other mental disorder has been diagnosed"). Dr. R.D. noted that the Veteran's diagnosed generalized anxiety disorder appears to have escalated following exposure to traumatic events. He presented and tested with high levels of anxiety and it was suggested that further evaluation of PTSD be considered. On review, the Board finds that the diagnosis of PTSD rendered in May 2010 during VA psychiatric assessment is the only diagnosis of PTSD of record, and it is of relatively low probative value because the diagnosis appears to rely wholly on the Veteran's subjective history, including unverified stressors. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise is not probative). The Board finds that the opinion provided by the October 2010 VA examiner, essentially that the Veteran does not meet the criteria for a PTSD diagnosis conforming to the DSM-IV, to be both probative and persuasive. The examiner discussed the criteria necessary for a PTSD diagnosis. The VA examiner's opinion was based on a thorough and detailed examination of the Veteran and his record and was supported by adequate and persuasive rationale. The May 2010 VA staff psychiatrist, on the other hand, provided very little discussion related to the diagnostic criteria for PTSD. In particular, the VA staff psychiatrist did not indicate what stressor satisfied the Criterion A for a PTSD diagnosis. Moreover, no treating or examining source has confirmed the diagnosis since then. In fact, the Veteran was not diagnosed with PTSD 5 months (during an initial evaluation for PTSD) after the VA staff psychiatrist provided the PTSD diagnosis. The Board therefore finds that the VA staff psychiatrist's one-time diagnosis to be less probative than the other evidence of record showing that the Veteran did not satisfy the diagnostic criteria for PTSD under the DSM-IV. The Board finds that the preponderance of the evidence is against a finding that the Veteran had a diagnosis for PTSD within the appeal period or in proximity to the claim for service connection. The October 2014 DBQ raises the possibility of PTSD but instead addresses a diagnosis of generalized anxiety disorder, with no other mental health disorder diagnosed. The Veteran is certainly welcome to submit evidence in the future supporting a PTSD diagnosis, but based on the evidence contained in the claims file the weight of such evidence does not support a diagnosis of PTSD at the present time. The Board has considered the Veteran's assertions that he has PTSD. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue under discussion here falls outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d at 1377 n.4. Establishing PTSD as a disability for VA purposes requires diagnostic testing and a diagnosis conforming to the criteria as set forth in the Diagnostic and Statistical Manual for Mental Disorders. 38 C.F.R. §§ 4.125, 4.130. The Veteran has not been shown to possess the medical expertise or knowledge required to diagnose a disability such as PTSD. Therefore, because the Veteran is a lay witness, his statements do not constitute competent evidence of a diagnosis for PTSD conforming to the DSM-IV or DSM-V. Accordingly, the most probative evidence of record shows that the Veteran does not have a diagnosis for PTSD under the criteria set forth in DSM-IV during the appeal period or in proximity to the claim for service connection. See McClain v. Nicholson, 21 Vet. App. 319 (2007). In view of the foregoing, the Board concludes that the preponderance of the evidence is against the claim for service connection for PTSD. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. 38 U.S.C.A. § 5107(b). The Board does however find, that based on the evidence of record, service connection for a psychiatric disability other than PTSD is warranted. On October 2010 VA initial evaluation for PTSD, following mental status examination of the Veteran, the examiner diagnosed anxiety disorder, NOS [not otherwise specified]. As noted above, the examiner noted the Veteran did not endorse required symptoms for a full diagnosis of PTSD. The examiner opined that it is most likely that the Veteran's struggles with anxiety are the result of his retirement with an exacerbation of difficulties with anxiety and intrusive thoughts and nightmares occurring after his retirement that was brought on by his experiences in the military. The VA examiner reviewed the Veteran's record, provided a rationale and cited to the Veteran's reported history in reaching the opinion. The Veteran's record also contains a diagnosis of generalized anxiety disorder from his private physician. In a November 2014 statement, the Veteran's private physician opined that without any intercurrent cause and based on sound clinical principal it is more likely than not that the Veteran's problems with panic and depression and the appearance of sadness related to intrusive recall of events (death of friends) and traumatic experiences in the military have greatly contributed to worsening of the Veteran's anxiety disorder. The private physician reviewed the Veteran's record, cited to the Veteran's reported history and provided a rationale for the opinion. Thus, the evidence in this case provides a reasonable basis to warrant a grant of service connection for a psychiatric disability other than PTSD. As such, service connection for a psychiatric disability other than PTSD is warranted. ORDER Service connection for PTSD is denied. Service connection for a psychiatric disability other than PTSD is granted. ______________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs