Citation Nr: 1752647	
Decision Date: 11/16/17    Archive Date: 11/22/17

DOCKET NO.  14-09 024	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in North Little Rock, Arkansas


THE ISSUE

Entitlement to service connection for an acquired mental disorder, to include posttraumatic stress disorder (PTSD) and depressive disorder not otherwise specified (NOS).


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

W.T. Snyder, Counsel

INTRODUCTION

The Veteran served on active duty from February 1968 to October 1971, to include service in the Republic of Vietnam (RVN) from February 1970 to February 1971. 

This appeal to the Board of Veterans' Appeals (Board) arose from an August 2011 rating decision by a Department of Veterans' Affairs (VA) Regional Office (RO) that denied service connection for PTSD. The August 2011 rating decision referenced the examiner's opinion on the depressive disorder but did not make a specific finding related to it. The Board nonetheless has stated the issues as shown on the title page, as the Veteran's claim for service connection for PTSD is deemed to encompass all psychiatric diagnoses. Clemons v. Shinseki, 23 Vet. App. 1,5 (2009).

In August 2014, the Veteran appeared at a Board hearing at the RO before the undersigned. A transcript of the hearing testimony is associated with the claims file. Then, in May 2016, the Board remanded the case for additional development.


FINDINGS OF FACT

1. Prior to the Board remand, the diagnosis of PTSD of record was not confirmed.

2. The weight of the evidence of record is against a finding that a prior diagnosis of depressive disorder NOS had onset in active service or is otherwise causally connected to active service.

3. The post-remand evidence of record shows no currently diagnosed acquired mental disorder.

CONCLUSIONS OF LAW

1. The requirements for entitlement to service connection for PTSD have not been met. 38 U.S.C. §§ 1110, 1154, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304(f) (2017).

2. The requirements for entitlement to service connection for an acquired disorder other than PTSD, to include depressive disorder NOS, have not been met. 38 U.S.C. §§ 1110, 1154, 5107(b); 38 C.F.R. §§ 3.102, 3.303.


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duty to Notify and Assist

Prior to issuance of the August 2011 rating decision, via an April 2011 letter, 
VA provided the Veteran with notice.  Additionally, VA has a duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. See 38 C.F.R. § 3.159(c). The Veteran's service treatment records (STRs), non-VA, and 
VA treatment records, including the VA examination reports are in the claims file. Further, as noted above, the Board remanded the case for additional development, which was substantially complied with. As such, the Board will proceed to the merits of the appeal.

Governing Law and Regulations

Generally, to establish service connection, a veteran must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303.

Service connection may 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).

There are particular requirements in 38 C.F.R. § 3.304(f) for establishing PTSD in addition to those for establishing service connection generally. See Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010) ("Simply put, while section 3.303 mandates that there be a link between a current disability and military service, section 3.304(f) sets forth the evidence necessary, in the context of claims for PTSD disability compensation, to establish that link."). Entitlement to service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); 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) and § 4.125 (requiring PTSD diagnoses to conform to the DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS-5 (DSM-5). The Board notes that at the time the Veteran was examined in 2011, DSM-IV was the governing directive.

"Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted").

In relevant part, 38 U.S.C. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). A layperson is competent to report on the onset of disability and, when applicable, continuity of his or her current symptomatology. See Layno, 6 Vet. App. at 470 (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient to establish a diagnosis if (1) the 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. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007).
 
When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether the appellant's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). 

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

Discussion

The June 2011 VA examination report reflects that the examiner noted that PTSD was not found. The examiner, however, did not discuss what parts of the DSM criteria were not met for a PTSD diagnosis. (06/30/2011 VA Examination) Hence, the Board remanded for further medical assessment and clarification.

Pursuant to the May 2016 Board remand, the AOJ arranged another examination.

PTSD

In the "Diagnosis" section of the 2016 VA examination report, the VA examiner, a psychologist, stated "yes" that the Veteran now has or that he has ever been diagnosed with a mental disorder and listed - ICD code: F43.1.  See ICD10Data.com, available at http://www.icd10data.com/ICD10CM/Codes/F01-F99/F40-F48/F43-/F43.1 (last visited Nov. 13, 2017) (stating that this code means PTSD, but it "should not be used for reimbursement purposes as there are multiple codes below it that contain a greater level of detail").  However, the June 2016 examination report also reflects that the examiner found "no mental disorder diagnosis." (06/17/2016 C&P Exam, p.1) In the Remarks section, the VA examiner elaborated further and stated:

it is the opinion of this evaluator that [the Veteran's] current symptoms and level of social/occupational functioning impairment is not sufficient to meet criteria for the diagnosis of any mental disorder. Previous documentation indicates that he was diagnosed with PTSD in March of 2011. The notes related to the diagnosis do not indicate the level of social and occupational impairment at that time. Furthermore, sleep problems are the only documented arousal symptom of PTSD. The documentation available, including the list of reported symptoms in the note from March 2011, does not meet the diagnostic criteria for PTSD.

When viewing this examination report in total, the Board finds that it is evidence that weighs in favor of a finding that the examiner determined that the examination revealed no currently diagnosed mental disorder. See Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) (explaining that an examination report "must be read as a whole" to determine the examiner's rationale).  The Board places much weight on this piece of evidence as the mental health specialist reviewed the claims file and gather pertinent medical history from the Veteran, examined the Veteran, and provided support for the opinion given.  As such, the Board finds that evidence weighs against the first requirement for service connection-that there be a currently diagnosed disorder or disease. 38 C.F.R. § 3.303.

The Board acknowledges the 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 the claim, even though the disability resolves prior to the Secretary's adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013) (stating that the Board must consider evidence of a "recent" diagnosis made prior to the filing of a claim). The Board notes that there are diagnoses of record that were entered during the time the claim as been pending. Hence, the appeal may not be resolved on the basis of the absence of a currently diagnosed mental disorder. Id.

The Veteran's claimed stressors included being present at bases in RVN that were repeatedly shelled by the enemy. He also reported the stress of seeing body bags. At a minimum, the Veteran's first claimed stressor satisfies the criterion of fear of hostile military action. See 38 C.F.R. § 3.304(f)(3). Hence, the salient issue is whether there is a confirmed diagnosis of PTSD that is linked with that stressor.

On his December 1967 Report of Medical History for his examination for entry into active service, the Veteran indicated a positive history for depression or exceptional worry. The examiner did not note any comment. (08/27/2014 STR, p. 2) The December 1967 Report of Medical Examination For USAF reflects that the Veteran's psychiatric area was assessed as normal. Id., p. 16. Hence, he is deemed to have been in sound psychiatric condition at the time he entered active service. 38 C.F.R. § 3.304. Further, a June 1968 follow-up noted that the Veteran's reported depression was related to his having to care for his brother and sister, and that he was currently ok. At the time of his separation, the Veteran again noted a history of depression or excessive worry, and the examiner noted that it was related to job dissatisfaction. The April 1971 Report of Medical Examination For Separation reflects that the Veteran's psychiatric area was assessed as normal. STRs, p. 6-9.

The June 2011 examination report (06/30/2011 VA Examination) reflects that the Veteran reported that he once drank heavily but quit entirely in 1982. He reported further that that he thought about Vietnam approximately once a week, and that it was typically triggered by something external, such as someone speaking Vietnamese. He reported that his sleep was poor, but that he did not remember having any specific dreams. He avoided watching the History Channel "too much" but watched things on television about Vietnam. He described some symptoms of elevated arousal such as an exaggerated startle response to unexpected noises, and hypervigilance that was expressed as keeping an eye on people, and sitting with his back to the wall in a restaurant. The Veteran also reported that his wife had told him that he tossed, turned, and talked in his sleep. Post service, the Veteran retired after having worked for an electric company for 15 years, and he had been married to his current wife for 19 years. His primary daily activity was caring for his elderly mother. He enjoyed going out to eat and to the movies with his wife. He denied any use of alcohol or any recreational drugs.

Mental status examination revealed the Veteran as pleasant and cooperative throughout the interview. His speech was of normal rate, rhythm, and tone. His thoughts were expressed in a logical and linear fashion, and there was no indication of hallucinations or delusions. Overall, he displayed no impairment in thought processes or communication. Concentration and memory appeared to be intact; and, his insight and judgment also appeared intact. He described his mood as "pretty good overall," and his affect was broad. He smiled easily throughout the interview sessions and did not appear to be depressed. He denied any thoughts of suicide or homicide. The examiner determined that PTSD was not found. Id., p. 3-4.

As noted earlier, the Board remanded so that an examiner could provide specifically how the Veteran's symptoms did not meet the DSM criteria. The June 2016 examination report reflects that the examiner reviewed the claims file and the Veteran's medical records. The examiner noted that the Veteran had participated in a 12-week PTSD Outpatient Program and a March 2011 note wherein a diagnosis of PTSD is recorded. The 2016 examiner, however, noted that the diagnosis did not indicate the level of the social and occupational impairment at that time; and, that sleep problems were the only documented arousal symptom of PTSD noted. The examiner opined that the documentation available, to include the list of reported symptoms in the March 2011 note did not meet the diagnostic criteria for PTSD. (06/17/2016 C&P Exam)

The Board finds that the evidence of record is consistent with the C&P examiner's assessment. Outpatient records note the Veteran's referral for a positive depression screen, and a long history of nightmares. One entry notes Axis I diagnoses of PTSD and depressive disorder NOS. (06/01/2011 medical Treatment-Government Facility, p. 3, 14, 16) Outpatient records dated in November 2014 note reported PTSD symptoms, but PTSD was not diagnosed. (05/25/2016 CAPRI, p. 83, 100-101)

In deciding this appeal, the Board must weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999).  The Board is also mindful that it cannot make its own independent medical determination, and that there must be plausible reasons for favoring one medical opinion over another, Evans v. West, 12 Vet. App. 22, 31 (1998), but may favor the opinion of one competent medical expert over that of another, provided the reasons therefor are stated. Winsett v. West, 11 Vet. App. 420, 424-25 (1998). Further, while the Board is not free to ignore the opinion of a treating physician, it is free to discount the credibility of that physician's statement. See Guerrieri v. Brown, 4 Vet. App. 467, 471-73 (1993); Sanden v. Derwinski, 2 Vet. App. 97, 101 (1992).

At the June 2016 examination, the Veteran confirmed his history as reported at the 2011 examination. He and his current wife, married 25 years at the time of the examination, were still married, and still enjoyed doing things together. He described his relationship with his wife as supportive. The Veteran reported that he did not see much of their two adult children due to distance. He no longer was responsible for caring for his elderly mother, as she died three years earlier. The Veteran reported a period of heavy drinking for approximately five years after returning from Vietnam. He said that he stopped drinking completely when he and his wife were dating prior to getting married. He had never participated in substance use treatment, and he denied any current substance use. He reported problems with sleep, in that he slept approximately four hours per night. He said that he fought in his sleep, but he did not remember the content of his nightmare.

Mental status examination revealed that the Veteran arrived dressed clean and appropriate for the weather. His hygiene was appropriate. His affect was neutral, and fluctuated minimally during the conversations. Fluctuations that were noted were according to the conversation. There was no evidence of disorganized or delusional thought content. The Veteran reported visual phenomena that he described as hallucinations - they apparently occurred randomly and were not associated with fearful responses. He denied any current suicidal or homicidal ideations. The examiner noted that all of the Veteran's symptoms were noted in the mental status examination. The examiner opined that the Veteran's current symptoms and level of social/occupational functioning impairment was not sufficient to meet the criteria for the diagnosis of any mental disorder. (06/17/2016 C&P Exam, p. 3-4)

The Board notes that the other PTSD diagnoses of record were entered in the treatment milieu, whereas C&P examiners' sole focus is whether a claimed mental disorder meets the DSM criteria. Further, as stated above, the June 2016 examiner reviewed the claims file and examined the Veteran, and provided an explanation for his findings and opinion. Hence, the Board finds it highly significant and affords it significant weight-significantly more than to the diagnoses noted in the outpatient records. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).

Depressive Disorder

Upon receipt of the June 2011 examination report, the RO informed the examiner that he did not address the diagnosis of depressive disorder NOS, and asked the examiner to opine whether it was causally connected to active service. (07/13/2011 VA Form 21-2507a) In an August 2011 report, the examiner noted the entries in the Veteran's STRs. The examiner noted further that the Veteran's records reflected that he had situational stressors pertaining to the care of his 82-year-old mother and also his chronic pain. The examiner noted further that the Veteran did not endorse symptoms of depression when interviewed in June 2011 but reported that he felt pretty good overall. The examiner noted further that a diagnosis of "depressive disorder, not elsewhere classified" is used when the person has depressive features that do not meet there criteria for major depressive disorder, dysthymic disorder, or adjustment disorder. In the Veteran's case, his depressive symptoms were most likely related to the care of his mother and his chronic pain, and therefore not specifically related to his military service. (08/11/2011 VA examination, p. 1)

The evidence of record supports the examiner's findings and opinion in 2011. Outpatient records notes the Veteran's report in March 2015 that his major depression was related to the loss of his physical abilities. (05/25/2016 CAPRI, p. 116) [The Board notes that the record currently reflects that service connection is not in effect for any disability.] The clinician also noted that the Veteran has not been able to grieve the loss of his mother who died two years ago. Thus, the Board finds that the 2011 examiner reviewed the claims file as it existed at that time, and provided a clear rationale for the opinion given. Hence, the Board affords it significant weight. See Nieves-Rodriguez, 22 Vet. App. 295; Stefl, 21 Vet. App. at 124. As already set forth, the June 2016 examination report reflects that the examiner entered no mental health diagnosis.

In light of all of the above, the Board finds that the preponderance of the evidence is against the claim for PTSD and a mental disorder other than PTSD. 38 C.F.R. §§ 3.303, 3.304(f). In reaching this decision the Board considered the doctrine of reasonable doubt.  As the preponderance of the evidence is against the Veteran's service connection claim for a psychiatric disorder, however, the doctrine is not for application.  Schoolman v. West, 12 Vet. App. 307, 311 (1999).


ORDER

Service connection for an acquired mental disorder, to include PTSD and depressive disorder NOS, is denied.




____________________________________________
Paul Sorisio
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs