Citation Nr: 1752865	
Decision Date: 11/17/17    Archive Date: 11/22/17

DOCKET NO.  13-25 145A	)	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 variously diagnosed.


REPRESENTATION

The Veteran represented by:  The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

P. Franke, Associate Counsel

INTRODUCTION

The Veteran served on active duty in the United States Army from January 1988 to November 1997.

This appeal comes before the Board of Veterans' Appeals (Board) from rating decisions by the St. Petersburg, Florida Regional Office (RO) of the United States Department of Veterans Affairs (VA).  A December 2000 rating decision denied the Veteran's claim for PTSD, the Veteran did not appeal and an August 2010 rating decision reopened the claim.  As the RO has adjudicated this claim de novo, the Board will proceed accordingly with its de novo review as the issue has been expanded to consider all noted psychiatric diagnoses.

The Veteran was afforded a videoconference hearing before the undersigned in August 2016.  A transcript of the testimony has been associated with the record.

This appeal was processed using the Veterans Benefits Management System (VBMS) and the Legacy Content Manager Documents (LCMD) (formerly Virtual VA) electronic claims files.  


FINDING OF FACT

Although the in-service stressor has been conceded, the record does not contain a current medical diagnosis of post-traumatic stress disorder (PTSD) or medical evidence of a causal nexus between current symptomatology and the specific claimed in-service stressor; and the Veteran's diagnosed adjustment disorder, NOS (not otherwise specified) is less likely than not related to the conceded stressor.  Other recorded psychiatric disorders have not been shown to be related to in-service occurrence or event.




CONCLUSION OF LAW

The criteria for service connection for an acquired psychiatric disorder, to include variously diagnosed psychiatric disorders, are not met.  38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.159, 3.303 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist 

The Veterans Claims Assistance Act of 2000 (VCAA) provides that VA will notify the Veteran of the need of necessary information and evidence and assist him or her in obtaining evidence necessary to substantiate a claim, as well as obtaining a medical examination or opinion of the Veteran's disability when necessary.  38 U.S.C. § 5103 (a); 38 C.F.R. § 3.159 (b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  VA has assisted the Veteran in obtaining evidence to the extent possible, in collecting service treatment records, arranging examinations and obtaining opinions.  

Service Connection 

Generally, service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service.  38 U.S.C. § 1131; 38 C.F.R. § 3.303(a).  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).  Service connection for a disability requires evidence of:  (1) The existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service.  Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).  See also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). 
Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as psychosis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service.  38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309.  A psychosis has not been demonstrated or claimed in this case, so these provisions are not applicable.

Alternatively, when a disease at 38 C.F.R. § 3.309 (a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service.  See 38 C.F.R. § 3.303 (b).  However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309 (a) and does not apply to other disabilities which might be considered chronic from a medical standpoint.  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Lay Evidence 
 
Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation.  38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).  Lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

The Veteran's Assertions

The Veteran contends in his testimony and submissions that in-service stressors induced symptoms of PTSD.  He adds that his symptoms have been ongoing since separation from service, they have been worsening and they have affected his sleep, marital and family relationships and his ability to function in the work place.

Facts and Analysis

The present claim turns upon essentially the same history, factual bases and claimed symptomatology and in the broadest terms the Veteran is claiming that an acquired psychiatric disorder is a result of his active service.  Cf. Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008).  Nonetheless, the Veteran in his testimony and his submissions has specifically and consistently addressed symptoms of PTSD and their severity.  Establishing service connection for PTSD requires the specific findings of  (1) a current medical diagnosis of PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in-service stressor.  See 38 C.F.R. § 3.304 (f).  

The Board notes at the outset that the Veteran appeal was certified to the Board on February 24, 2014.  For cases certified to the Board prior to August 4, 2014, the diagnosis of PTSD must be in accordance with the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV).  38 C.F.R. § 4.125 (a) (2015); Schedule for Rating Disabilities-Mental Disorders and Definition of Psychosis for Certain VA Purposes, 79 Fed. Reg. 45,093 (Aug, 4, 2014) (Applicability Date) (updating 38 C.F.R. § 4.125 to reference the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM - V).

The Veteran's service treatment records (STRs) show that in December 1987, March 1989, May 1991, and July 1996 examinations, the Veteran stated he is in good or average health, taking no medications and the boxes for depression or excessive worry, loss of memory or amnesia and nervous trouble of any sort (not checked yes or no in March 1989 examination) were checked "NO."  To the questions of having ever been treated for a mental condition, the answer "NO" was checked.  In what appears to have the 1996 examination, the clinical evaluation for "psychiatric" was checked "NORMAL."  In March 1989, the Veteran underwent a mental status evaluation for possible alternative unit assignment.  His behavior was evaluated as normal; he was fully alert; fully oriented; mood or affect was unremarkable; thinking process was clear; thought content was normal; and memory was good.

In December 1999, the Veteran presented to Pensacola VA and was assessed with depression, rule out dementia.  In January 2000, he received a diagnosis of major depression.  In March 2000, the Veteran was given an additional diagnosis of PTSD, severe.  By May 2000, his assessment included Axis I: PTSD; major depression, moderate recurrent; and attention deficit hyperactivity disorder (ADHD) (by history).

However, by March 2004, the Veteran's diagnosis was stated as PTSD (by history); major depression disorder, recurrent, moderate (by history) and ADHD (by history).  

In December 2008, Pensacola VA progress notes contain a diagnosis of Axis I:  Depression disorder, NOS (not otherwise specified).  Although noting the Veteran's reports of Gulf War service, dreams, flashbacks, hypervigilance and observing that the Veteran is experiencing significant symptoms of depression and PTSD, the accompanying diagnosis of PTSD is again specified as "by history."  

December 2008 to January 2009 progress notes at Pensacola VA assessed the Veteran with depression disorder, NOS, PTSD by history and history of attention deficit disorder (ADD).  In July 2009, depression was noted as mild, the Veteran was coping well and the treating psychiatrist stated she did not see any evidence of ADD.  

January 2010 notes contain an Axis I diagnosis of depression disorder (mild, rule out PTSD) and assign a GAF score of 65-70 (mild symptoms, but functioning well).  February 2010 progress notes include a GAF score of 68.

In June 2010, an initial PTSD VA examination was conducted by review of the Veteran's claims file.  The VA examiner diagnosed the Veteran with Axis I:  Adjustment Disorder NOS, Chronic (Provisional) and assigned a GAF score of 75 (transient symptoms, slight impairment in functioning).  The June 2010 VA examiner noted the Veteran reports of daily PTSD symptoms, such as memories of active duty in the desert; his reports of specific in-service stressors of being in fear for his life by hostile military or terrorist activity, as well as his memories of seeing others die; and his reports of having a new family and new responsibilities and the stresses and pressures associated with these new opportunities.   

However, the June 2010 VA examiner also voiced concerns about the frequency, duration and severity of symptoms and noted that the diagnosis of PTSD had been based predominantly on the Veteran's subjective report of symptoms with no objective assessment of PTSD and that for the prior 18 months the primary focus of the Veteran's mental health treatment had not been PTSD.

In looking to the psychological testing results, the June 2010 VA examiner observed that objectively assessed response style issues precluded a conclusive diagnosis of mental disorder and the issues concerning the Veteran's response style were particularly pronounced in regard to reported functional impairment, a wide range of psychiatric symptoms, symptoms of mood disorder, and somatic symptomatology.  

The June 2010 VA examiner also noted that there was no indication of total occupational and social impairment; the reported impairment in occupational and social functioning appears to be caused by job-specific and relationship-specific factors, rather than by symptoms of post-traumatic stress disorder; and the prognosis is unclear at this time.

The June 2010 VA examiner opined that the Veteran's PTSD is not caused by or a result of an in-service event.  He explained that PTSD was not diagnosed in the current examination because the Veteran's mental health history and the results of objective testing did not conform to DSM-IV guidelines for the diagnosis of PTSD in the context of an external incentive (i.e., disability benefits).  He added that, as stated above, the Veteran's previous diagnoses of PTSD were conferred in a clinical context where different diagnostic guidelines apply, appear to have been based predominantly on the Veteran's subjective report of symptoms, with no objective assessment of response style conducted, and were therefore inapplicable to the current examination.  The June 2010 VA examiner further added that, although the Veteran has received significant treatment associated with a diagnosis of PTSD the receipt of treatment is not a diagnostic criterion for PTSD, nor is there evidence in the published empirical literature that a diagnosis of PTSD is more likely to be valid when one receives significant treatment associated with it.

In August 2010, an addendum was requested as a clarifying opinion as to as to whether or not the diagnosis of adjustment disorder, NOS, chronic is related to the Veteran's conceded stressor of fear of hostile military or terrorist activity.  The June 2010 VA examiner opined that the diagnosis of adjustment disorder, NOS is less likely than not related to the Veteran's conceded stressor of fear of hostile military or terrorist activity and, directing attention to the details of his June 2010 VA examination, is more likely than not related to the Veteran's reported marital and family problems.

The record further indicates that in December 2010, the Veteran scored 37 on a Patient Health Questionnaire (PHQ-9) depression screen, which was stated to be suggestive of severe depression.  However, between March 2011 and July 2014 at Pensacola VA, the review of systems during examinations noted the Veteran to be negative for depression, anxiety and insomnia.  In May 2012, the Veteran was assigned a score of 3 on a PHQ-9 depression screen, which was stated to be suggestive of no depression.  During this period, the Veteran's prescriptions continued to include several daily depression and anxiety medications.

From January to December 2011, the Veteran's diagnoses were Axis I:  Depression disorder, NOS (in one instance major depression disorder) and PTSD (per chart history), with GAF scores of 50-66 (serious to mild symptoms).  During this period, treatment notes continued to note the Veteran reports of anxiety and depression due to concerns about possible homelessness, unemployment, frustration, and marital disputes.

In looking specifically to the requirements for establishing PTSD, the record does not provide a current diagnosis of PTSD.  From as early as March 2004, the diagnosis of PTSD is described as "by history."  From December 2008 onward the record indicates consistent diagnoses of depression disorder and, when accompanied by diagnosis of PTSD, is consistently modified by phrases such as "by history" or "per chart history."  This indicates that the "diagnosis" of PTSD is based solely on the reports of the Veteran.  

Significantly, the June 2010 VA examiner explained that the diagnosis of PTSD had been based predominantly on the Veteran's subjective report of symptoms with no objective assessment of PTSD.  Without an objective assessment of PTSD, there is no basis for the Board to treat PTSD as a current diagnosis.  

Even if the Board were to treat it as such, the June 2010 VA examiner points out that the Veteran's mental health history does not conform to DSM-IV guidelines, as it must.  For example, he states that for the year and a half before the examination, the primary focus of the Veteran's mental health treatment was not PTSD.  From the record, it appears that treatment focused on depression.  The lack of results of objective testing of PTSD, discussed above, also does not satisfy DSM-IV guidelines.

As it is, the June 2010 VA examiner's diagnosis was adjustment disorder, NOS, chronic (provisional).  Although the Veteran's in-service stressors of fear of hostile military or terrorist activity have been conceded, there is no medical evidence of a causal nexus between the stressors and the Veteran's current symptomatology and the June 2010 VA examiner's August 2010 addendum opinion stated that the stressors are more likely than not related to the Veteran's reported marital and family problems.  There is no indication or contention that any depression present is in any way related to service.

Conclusion

The Board has carefully reviewed and considered the Veteran's Board hearing testimony, his March 2000 and April 2010 Statements in Support of Claim and his reports during examinations, as they appear throughout the record, all of which have assisted the Board in better understanding the nature and development of the Veteran's disability.  As stated earlier in this decision, lay people are competent to report on matters observed or within their personal knowledge.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994).  Therefore, the Veteran is competent to provide statements of symptoms which are observable to his senses and there is no reason to doubt his credibility.  However, the Board must emphasize that the Veteran is not competent to diagnose or interpret accurately the past or current severity of the Veteran's osteoporosis-related back and hip disabilities, as this requires highly specialized knowledge and training.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).

The Board cannot render its own independent medical judgments; it does not have the expertise.  Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991).  The Board must look to the clinical evidence when there are contradictory findings or statements inconsistent with the record.  In the absence of an explicit indication in the contemporaneous evidence of service connection, it must rely on medical findings and opinions.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997).   

For the reasons stated, the Board finds the opinion of the June 2010 VA examiner to be adequate for the purpose of determining service connection and assigns to it significant probative weight.  The Board further finds that the Veteran's acquired psychiatric disorder, to include variously diagnosed psychiatric disorders, was not caused by, the result of or aggravated by an in-service injury, event or illness.

The Board has considered the benefit-of-the-doubt doctrine; however, the Board does not perceive an approximate balance of positive and negative evidence.  The preponderance of the evidence is against the claim, the doctrine is not applicable and the claim must be denied.  38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3.



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ORDER

Entitlement to service connection for an acquired psychiatric disorder variously diagnosed is denied.


____________________________________________
MICHAEL D. LYON 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs