Citation Nr: 1753043 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 13-12 465 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for an acquired psychiatric disability, to include depression and posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: John F. McKay (appointed under 38 C.F.R. § 14.630) ATTORNEY FOR THE BOARD T. J. Anthony, Associate Counsel INTRODUCTION The Veteran had active duty for training (ACDUTRA) from June 1972 to October 1972, and had active service from July 1973 to March 1975. This matter is before the Board of Veterans' Appeals (Board) on appeal of March 2009 and March 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. In March 2013, the Veteran testified at a hearing before a Decision Review Officer (DRO). A transcript of that hearing is of record. The Board remanded this appeal in January 2016. In April 2017, following issuance of a supplemental statement of the case, the Veteran's representative submitted a statement in support of the Veteran's appeal and did not request initial Agency of Original Jurisdiction (AOJ) consideration of that statement. The statement is accepted for inclusion in the record on appeal. See 38 U.S.C. § 7105(e) (2012). The Veteran initially submitted claims for entitlement to service connection for depression and PTSD. See VA Form 21-526, Veteran's Application for Compensation and/or Pension, received in March 2008; VA Form 21-4138, Statement in Support of Claim, received in September 2010. Additional evidence associated with the record includes diagnoses for psychiatric disabilities other than depression and PTSD, to include anxiety, mood disorder, and bipolar disorder. Although the Veteran sought service connection only for depression and PTSD, a claim "cannot be a claim limited only to that diagnosis, but must rather be considered a claim for any mental disability that may be reasonably encompassed." Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Accordingly, the Board has reframed the issues on appeal, as shown on the title page. FINDINGS OF FACT 1. The competent medical evidence of record does not show that the Veteran had a diagnosis of PTSD during or in proximity to the relevant appeal period. 2. The evidence of record does not show that it is at least as likely as not that the Veteran's currently diagnosed acquired psychiatric disabilities other than PTSD are related to his active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for PTSD are not met. 38 U.S.C. §§ 1110, 5103, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 4.125, 4.130 (2017). 2. The criteria for entitlement to service connection for an acquired psychiatric disability other than PTSD are not met. 38 U.S.C. §§ 1110, 5103, 5107A (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist Pursuant to the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.159, 3.326 (2017); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA's duty to notify was satisfied by letters dated in June 2008 and December 2010. See 38 U.S.C. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). VA has also satisfied its duty to assist the Veteran. The Veteran's identified and available service treatment records, service personnel records, VA treatment records, and private treatment records have been associated with the record, as have lay statements from the Veteran. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The record indicates that the Veteran was in receipt of Social Security Administration (SSA) disability benefits for a period. VA is required to obtain disability records from the SSA only if there is a reasonable possibility that such records are relevant to the Veteran's claim for VA disability compensation. Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010). Relevant records for the purpose of 38 U.S.C. § 5103A are those records that relate to the injury for which the claimant is seeking benefits and that have a reasonable possibility of helping to substantiate the Veteran's claim. Id. at 1321. In this case, the record indicates that the Veteran was granted SSA disability benefits based on a nonservice-connected back disability. As such, the Board concludes that it is not shown that the SSA records would have a reasonable possibility of helping to substantiate the Veteran's appeal for entitlement to service connection for an acquired psychiatric disability. Therefore, the SSA records are not relevant to the appeal, and further efforts to obtain the SSA records are not necessary prior to deciding the issue on appeal. 38 U.S.C. § 5103A(a)(2). The duty to assist also includes the provision of a VA examination when necessary to decide a claim. 38 C.F.R. § 3.159(c)(4). In this case, the Veteran was provided a VA examination in May 2016. The examiner who conducted the May 2016 VA examination reviewed the record, considered the Veteran's reported symptomatology and medical history, and addressed the likely etiology of the Veteran's diagnosed acquired psychiatric disabilities, providing supporting explanation and rationale for all conclusions reached. In September 2016, the examiner provided an addendum opinion, which provided further rationale for his May 2016 opinion. The examination and addendum opinion provide the information necessary to render a full decision as to the issue on appeal. Therefore, the Board finds the examination and addendum opinion to be adequate for decision-making purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). There is no indication in the record that any additional evidence, relevant to the issue adjudicated in this decision, is available and not part of the record. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Compliance with Board Remand As noted in the Introduction, the Board remanded this case in January 2016. The January 2016 Board remand directed the AOJ to provide the Veteran an opportunity to identify any pertinent VA or private treatment records; obtain updated VA treatment records; undertake proper development for any inpatient clinical or hospitalization records related the Veteran's reported in-service psychiatric hospitalization; provide the Veteran a VA examination to determine the nature and etiology of his acquired psychiatric disabilities; and then readjudicate the claim and issue a supplemental statement of the case, if warranted. Pursuant to the January 2016 Board remand, the AOJ contacted the Veteran in March 2016 and asked him to identify and authorize release of records from any VA and non-VA health care providers. The Veteran identified outstanding records from several health care providers, and VA undertook appropriate efforts to obtain those records. It was determined through VA's efforts and through statements made by the Veteran and his representative, that no further records were available from those health care providers. See 38 C.F.R. § 3.159(c)(1) and (2). In the March 2016 communication, the AOJ also asked the Veteran to provide the dates of his reported in-service psychiatric hospitalization. However, the Veteran indicated that he did not know the dates for that hospitalization. See VA Form 21-4138 received in March 2016. Therefore, further efforts to obtain records pertaining to that hospitalization were not required. See 38 C.F.R. § 3.159(c)(2)(i). The AOJ also obtained updated VA treatment records, provided the Veteran a VA examination in May 2016, obtained a VA addendum opinion in September 2016, and readjudicated the appeal in a March 2017 supplemental statement of the case. The May 2016 VA examination and September 2016 VA addendum opinion were consistent with and responsive to the January 2016 Board remand directives. Accordingly, the Board finds that VA at least substantially complied with the January 2016 Board remand. See 38 U.S.C. § 5103A(b); Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Legal Criteria Generally, service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). To establish service connection for a disability, the Veteran must show: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also 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 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. See 38 C.F.R. § 3.304(f). For cases certified to the Board before August 4, 2014, such as this case, the diagnosis of PTSD must be in accordance with the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition (DSM-IV). 38 C.F.R. § 4.125(a); 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 DSM-5). The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that interpretation of section 1110 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). In the absence of proof of a current disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service Connection for PTSD The Veteran seeks entitlement to service connection for PTSD. However, the record does not show that the Veteran has been diagnosed with PTSD by a competent medical source. The VA treatment records do not show such a diagnosis. The May 2016 VA examiner reviewed the record, interviewed the Veteran, and examined the Veteran, and determined that the Veteran has a diagnosis for a persistent mood disorder, but does not meet the diagnostic criteria for PTSD. The Board acknowledges 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 (2011), the diagnosis of a specific psychiatric condition such as PTSD falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). 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 of PTSD conforming to either the DSM-IV or the DSM-5. The Board instead affords probative value to the medical evidence of record, which shows that the VA examiner and VA physicians have considered the Veteran's reported psychiatric symptoms and have declined to provide a formal diagnosis of PTSD. Accordingly, the competent medical evidence of record does not show that the Veteran had a diagnosis of PTSD during or in proximity to the relevant appeal period. See McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). As noted above, in the absence of proof of a current disability, there can be no valid claim for entitlement to service connection. Brammer, 3 Vet. App. at 225. In view of the foregoing, the Board concludes that the preponderance of the evidence is against the claim for entitlement to 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. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service Connection for Acquired Psychiatric other than PTSD The Veteran seeks entitlement to service connection for an acquired psychiatric disability, to include depression. He has indicated that he had psychiatric problems prior to entering active service, and that he had anxiety and depression in basic training due to the treatment he received from his drill sergeant. See March 2013 DRO hearing transcript. He has asserted that being in the military made his pre-existing psychiatric disability worse and that he has been treated for his psychiatric disabilities since his separation from active service. See, e.g., VA Form 9, Appeal to Board of Veterans' Appeals, received in April 2013. Under the governing criteria, every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Aggravation of a preexisting injury occurs where there is an increase in disability during active service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. Aggravation may not be conceded, however, where the disability underwent no increase in severity during service. 38 C.F.R. § 3.306(b). The Veteran underwent a medical examination for entrance into his period of ACDUTRA in March 1972. The report for that examination reflects that the Veteran had a normal psychiatric evaluation. Thus, the Veteran's report of medical examination for entrance into ACDUTRA does not show that the Veteran had a psychiatric disability upon examination for entrance into active service. However, private treatment records show that the Veteran was treated for anxiety and depression in June 1971 and had a diagnosis of explosive personality. These records constitute clear and unmistakable evidence that the Veteran had a preexisting psychiatric disability at the time of his entrance into ACDUTRA. Therefore, the Board will consider whether there is clear and unmistakable evidence that the condition was not aggravated by service. The service treatment records of record do not show that the Veteran was treated for psychiatric complaints during his period of ACDUTRA. A report of medical examination report dated in September 1972 reflects that the Veteran had a normal psychiatric evaluation. The Veteran commented on the report, "I'm in good condition", and signed his name. The Board has considered the Veteran's contentions that his preexisting psychiatric condition was aggravated by his active service, to include due to the treatment he received from his drill sergeant. However, the Board does not attach any weight to those statements because they are controverted by the contemporaneous evidence of record, which shows that, at the end of his period of ACDUTRA, the Veteran had a normal psychiatric evaluation. Moreover, the Veteran himself attested at that time that he was in good health and made no mention of a psychiatric condition. See Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (upholding Board decision assigning more probative value to a contemporaneous medical record report than subsequent lay statements); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (upholding Board decision giving higher probative value to a contemporaneous letter the Veteran wrote during treatment than to his subsequent assertion years later). As such, the Veteran's statements do not constitute evidence that his preexisting psychiatric disability was aggravated by service. The Board has also considered the Veteran's assertions that he was treated for psychiatric conditions during his period of ACDUTRA, to include an inpatient psychiatric admission. However, the service treatment records are absent for evidence of such treatment. Furthermore, no record of the reported psychiatric admission has been obtained despite VA undertaking appropriate efforts to do so. Moreover, at a July 1993 VA mental disorders examination, the Veteran stated that his only problem while on active service was, "I had an appendectomy and some dental work." The Veteran did not report in-service treatment for a psychiatric condition to the July 1993 VA examiner. The Veteran's statement at the July 1993 VA examination directly negates his later assertions of having undergone psychiatric treatment during active service and renders those later assertions not credible. See Caluza v. Brown, 7 Vet. App. 498 (1995) (in determining whether evidence submitted by a Veteran is credible, the Board may consider internal consistency, facial plausibility, and consistency with other information submitted on behalf of the claimant). As such, the Veteran's assertions of in-service psychiatric treatment do not constitute credible evidence that his preexisting psychiatric disability was aggravated by service. Accordingly, the Board concludes that there is simply no credible evidence that the Veteran's preexisting acquired psychiatric disabilities underwent an increase in severity during his active service. As noted above, aggravation may not be conceded where the disability underwent no increase in severity during service. 38 C.F.R. § 3.306(b). As such, the Board finds that the evidence of record clearly and unmistakably shows that the Veteran's preexisting psychiatric disability was not aggravated by his period of ACDUTRA service, the presumption of soundness is rebutted, and service connection for an acquired psychiatric disability based on the Veteran's period of ACDUTRA is not available. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). As to the Veteran's later period of active service, the Veteran did not undergo a medical examination at the time of his entrance. The provisions relating to the presumption of soundness are only applicable where there is an examination at the time of entry into active service for the period of service on which the claim is based. See Smith v. Shinseki, 24 Vet. App. 40, 45 (2010) (holding that, in the absence of an examination on entrance into service, there is no basis from which to determine whether the claimant was in sound condition upon entry into that period of service on which the claim is based); see also Crowe v. Brown, 7 Vet. App. 238 (1994). Accordingly, the Board will consider whether service connection is warranted on a direct basis. The VA treatment record show that the Veteran has current diagnoses for acquired psychiatric disabilities, to include major depressive disorder, general anxiety disorder, and bipolar disorder. Therefore, there is evidence of a current diagnosis of acquired psychiatric disabilities, and the question remaining for consideration is whether those disability had their onset during the Veteran's active service or are otherwise related to his active service. The Veteran has reported that he had psychiatric symptoms during his active service, to include anxiety and depression. He has also stated that he had psychiatric treatment during his active service. See March 2013 DRO hearing transcript. He told the May 2016 VA examiner that he had anger issues and was arrested during his active service. However, he has been unable to provide information identifying the dates of his reported in-service psychiatric treatment and, as discussed above, there is no evidence of record showing such treatment. The service treatment records that are of record do not show in-service treatment for or diagnosis of an acquired psychiatric disability. The Veteran's service personnel records are absent for evidence of arrests or any other disciplinary actions. In addition, the Veteran had a normal psychiatric evaluation in February 1975 prior to his separation from active service. As such, there is no competent evidence of record showing that the Veteran was diagnosed with an acquired psychiatric disability during his active service. Nevertheless, the Veteran is considered competent to report symptoms such as anxiety and depression that he had during his active service. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Furthermore, the lack of contemporaneous medical records does not, in and of itself, render the Veteran's statements as to those symptoms not credible. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). To determine whether the Veteran's current acquired psychiatric disabilities may be related to his in-service psychiatric symptoms, the Board turns to the competent opinion evidence of record, which is in this case consists of the May 2016 VA examination report and the September 2016 VA addendum opinion. The May 2016 VA examiner opined that the Veteran's acquired psychiatric disabilities were less likely than not incurred in or caused by his service. As a rationale for the opinion, the examiner explained that, although the Veteran was diagnosed/treated for mental health issues in service, those symptoms are not consistent with the Veteran's current mental health symptoms, or, there is no evidence that the symptoms were continuous or the same entity since military service. In the September 2016 VA addendum opinion, the examiner clarified that, in stating that the Veteran was diagnosed and treated for mental health issues in service, he was merely taking the Veteran at face value in his assertions that he had in-service psychiatric treatment. The examiner acknowledged the Veteran's reports of bullying by his drill sergeant and feeling stressed by that treatment. However, he did not find the Veteran to be credible overall because the Veteran showed florid evidence of symptom magnification on psychological testing, portrayed himself as distressed, and reported vague psychotic-like features during the interview, but did not appear to suffer any type of schizophrenic spectrum disorder. Furthermore, the examiner found the Veteran's cognitive functioning at the examination to lack credibility, as the Veteran failed numerous symptom validity measures, to include showing high specificity and low sensitivity. The examiner reviewed the record and interviewed the Veteran to obtain an accurate view of his medical history. The examiner's rationale for his opinion provides insight into the medical aspects of the Veteran's diagnosed acquired psychiatric disabilities, as well as his performance at the examination. The Board notes also that the medical treatment evidence of record supports the examiner's conclusion that the Veteran's current symptoms are inconsistent with the reported in-service mental health issues. Specifically, the treatment records dating during the relevant appeal period repeatedly associate the Veteran's mood disorder with a nonservice-connected head injury. They also associate his depression and anxiety to other nonservice-connected disabilities, taking care of grandchildren, financial strain, family conflicts, and other matters not related to the Veteran's service. The Veteran rarely, if ever, has mentioned his in-service experiences in the course of obtaining psychiatric care. In view of the above, the Board affords probative value to the examiner's opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Prejean v. West, 13 Vet. App. 444 (2000). The Board has considered the Veteran's assertions that his current acquired psychiatric disabilities are related to his active service, to include the depression and anxiety he experienced due to the treatment he received from his drill instructors. As noted above, he is competent to report such symptoms. See Layno, 6 Vet. App. at 469. However, because he is a lay witness his opinions etiologically linking the current disabilities to the in-service symptoms is not considered competent. See Kahana, 24 Vet. App. 428; Jandreau, 492 F.3d at 1376-77. Therefore, his statements do not weigh against the probative value of the May 2016 VA examiner's opinion. In view of the foregoing, the Board concludes that the preponderance of the evidence is against the claim for entitlement to service connection for an acquired psychiatric disability. 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. § 5107(b); see also Gilbert, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for PTSD is denied. Entitlement to service connection for an acquired psychiatric disability other than PTSD is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs