Citation Nr: 1753057 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 10-31 201 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression. 2. Entitlement to service connection for ischemic heart disease, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD G. Jackson, Counsel INTRODUCTION The Veteran served on active duty from September 1966 to September 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2009 and May 2013 rating decisions issued by the RO. The Veteran testified at a Board video-conference hearing in August 2016 before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing has been made a part of the record. The Board remanded the appeal in May and December 2016 and for further development of the record. The development has been completed and the case has been returned to the Board for appellate disposition. VA has provided all appropriate notification and assistance to the Veteran in the development of the claim. The Veteran was notified and aware of the evidence needed to substantiate his claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. He was an active participant in the claims process submitting evidence and argument and presenting for an appropriate medical inquiry. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. FINDINGS OF FACT 1. The Veteran does not have PTSD. 2. The Veteran's current acquired psychiatric disorder is not attributable to disease or injury sustained during his period of service. 3. The Veteran does not have ischemic heart disease. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disorder are not met. 38 U.S.C. §§ 1110, 1154 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.385 (2017). 2. The criteria for service connection for ischemic heart disease are not met. 38 U.S.C. §§ 1110, 1116, 1154 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Additionally, Veterans who during active service served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence of non-exposure. 38 U.S.C. § 1116; 38 C.F.R. § 3.307. VA has interpreted that regulation to mean that the presumption of service connection applies to those service members who physically set foot in the Republic of Vietnam. See Haas v. Peake, 544 F.3d 1306, 1308 (Fed. Cir. 2008). In addition, VA regulations provide that a veteran who, during active military, naval, or air service, served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense (DOD), operated in or near the Korean DMZ (i.e. demilitarized zone) in an area in which herbicides are known to have been applied during that period, shall be presumed to have been exposed during such service to an herbicide agent unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. See 38 C.F.R. § 3.307(a)(6)(iv). If a veteran was exposed to a herbicide agent (to include Agent Orange) during active military, naval or air service and has contracted an enumerated disease to a degree of 10 percent or more at any time after service (except for chloracne and early-onset peripheral neuropathy which must be manifested within a year of the last exposure to an herbicide agent during service), the veteran is entitled to a presumption of service connection even though there is no record of such disease during service. 38 U.S.C. § 1112; 38 C.F.R. § 3.307, 3.309(e). The enumerated diseases are AL amyloidosis; chloracne or other acneform diseases; diabetes mellitus, type 2, Hodgkin's disease, all chronic B-cell leukemias, multiple myeloma, non-Hodgkin's lymphoma, early-onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma), Parkinson's disease, and ischemic heart disease. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6)(iii), 3.309(e), 3.313, 3.318. VA has determined there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 68 Fed. Reg. 27630 -27641 (2003). Notwithstanding the foregoing, regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In other words, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). Acquired Psychiatric Disorder, to include PTSD and depression There are particular requirements for establishing entitlement to service connection for PTSD in 38 C.F.R. § 3.304(f) that are separate from those for establishing service connection generally. Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). Those requirements are: (1) a diagnosis of PTSD in accordance with 38 C.F.R. § 4.125; (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. 38 C.F.R. § 3.304(f). 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 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). "Fear of hostile military activity" is defined to mean 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, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. Id. The list of examples of such an event or circumstance specifically includes incoming mortar, rocket, and sniper fire. Id. The Veteran contends that he has an acquired psychiatric disorder, including PTSD and depression due to his experiences in Korea. Service treatment records contain no documentation of complaints of or treatment for an acquired psychiatric disorder. His September 1968 Report of Separation examination reflects that psychiatric clinical evaluation was normal. A March 1995 treatment record documents the Veteran's complaint that he was nervous. He experienced flashbacks of his service in Korea. He had no homicidal or suicidal ideation. He reported that he gets depressed occasionally. On examination the diagnostic impression was depression/anxiety. An April 1995 psychiatric triage screening clinic note reflects that the Veteran had no combat exposure. The Veteran complained that he continued to experience anxiety. On examination, the diagnosis was generalized anxiety disorder. A November 1995 treatment record documents the Veteran's complaints of sleep disturbance, cold sweats, low energy, irritability, depression, anger and past suicidal ideation. He reported that he noticed the onset of his symptoms approximately 10 or 11 years earlier. He did not recall any problem with his mood or nerves prior to that time. He had no prior treatment history and has no known family history of mental illness. The Veteran had been married for 22 years and had six grown children. Two grandchildren lived with him and his wife as their mother had abandoned them. He worked in a poultry plant. He had no reported health problems. He received one non-judicial punishment action for a fight during his period of service; otherwise, his service was unremarkable. The September 1997 Report of VA PTSD examination reflects that the claims file was not available for review. The Veteran provided all the information and the psychologist indicated that the Veteran appeared to be a reasonably reliable historian, although he had some difficulty with dates and exact length of time periods. The Veteran reported that he first sought psychiatric treatment in 1995 for feelings of depression, sleep problems, nightmares and flashbacks. He was prescribed Trazadone and another medication (could not recall name) and continued to take those medications with some improvement in his condition. He worked the second shift at a plant and reported that his depression and sleep problems have not prevented his employment because he knows he has to work. He stated that he had been married since 1973 and he and his wife have six children that range in age from 21-29. His children did not live at home but he and his wife have three grandchildren that live with them. He stated that he experienced flashbacks related to his military experiences. Specifically, he reported that he felt like he was back on guard duty or out in the field in Korea. He also complained of recurrent and intrusive thoughts related to his military experience. He thought about both the good and bad times in Korea. He did not try to avoid recollections of his service in Korea, except that he would not watch war movies. He did not have specific triggers that brought back distressing memories. He did not have an inability to recall aspects of the trauma. He reported some estrangement from others, feeling they did not want to be bothered by him, but he acknowledged those feelings might be due to his depression. He did not have an inability to love or express his feelings to his wife or children. He described himself as jumpy and on edge. He did not avoid crowds and felt comfortable in church, malls and restaurants. He disliked clubs because they were too noisy and boisterous. He showed some hypervigilance in checking locks and doors and patrolling inside and outside his house at night. He reported that he was easily angered if pushed. His reported auditory hallucinations consisted of his hearing his name called. He reported that he heard an echo or distant voices but they were inside his head rather than true hallucinations. He reported that he frequently talked to himself but denied any visual hallucinations. There was no evidence of thought disorder or delusions. He denied present suicidal and homicidal ideation but reported previous ideation, last experienced in 1996. During service he spent much time rebuilding bunkers in the DMZ. He also went on numerous patrols and did guard duty. His reported stressor was the fact that he served in a war zone and was on alert for the whole year. He indicated that he felt like he was frequently in danger on a combat exposure scale; however, there were no specific incidents identified. He was never fired upon and never fired his weapon. On examination, the diagnosis was major depressive disorder, single episode. The psychologist explained that the Veteran was strongly influenced by his experiences in Korea and those experiences influenced his depression. However, the Veteran did not meet the criteria for a PTSD diagnosis. A January 2004 VA treatment record reflects that the Veteran sought to establish care/treatment for depression. He complained of chronic depression with occasional suicidal ideation. However, he denied plan. He also complained of insomnia. On examination, the assessment was depression with insomnia. The May 2017 Report of VA PTSD examination reflects that the Veteran does not have a diagnosis of PTSD that conforms to the DSM-5 criteria. Diagnoses of unspecified depressive disorder and unspecified psychotic disorder were rendered. The psychologist noted that the Veteran served in the Korean DMZ during his period of service between September 1966 and September 1968. The psychologist documented extensive review of the claims file, including a June 2007 statement from the Veteran that indicated that the stressful incident that preceded the development of his psychiatric disability was the death of his mother in 1967. After her funeral, the Veteran reported that he began "having nerve problems and he started drinking." Also documented was a statement from the Veteran to the Secretary of the VA asserting that he served in the Vietnam conflict and was diagnosed with PTSD. The psychologist opined that the unspecified depressive disorder and unspecified psychotic disorder were less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The psychologist explained that the Veteran asserted that the onset of his difficulties was during his term of service; however, the clinical record was inconsistent and placed the onset around the 1980's (see November 1995 treatment record) and the Veteran began seeking treatment in the mid 1990's (decades following his period of service in Korea). Thus, the psychologist concluded that it could not be reasonably determined that the Veteran's service in Korea and/or exposure to events during that period served as major contributing factors to his current psychiatric disorder. While non-medically trained veterans are competent to testify as to matters of diagnosis and etiology subject to lay observation, the question of whether a Veteran has PTSD based on a claimed in-service stressor is the type of medical issue as to an internal, non-observable process as to which lay testimony is not competent. See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) ("[I]t is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"); 38 C.F.R. § 3.304(f) (specifically requiring medical evidence diagnosing PTSD). Consequently, the Veteran's statements as to whether he has PTSD are not competent. The more probative evidence establishes that the Veteran does not have PTSD. Thus, there can be no valid claim for service connection. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Clemons also stands for the proposition that a claimant without medical expertise cannot be expected to precisely delineate the diagnosis of his mental illness. Id at 4-5. In this case, the September 1997 and May 2017 VA examination reports reflect that the Veteran has also been diagnosed with another acquired psychiatric disorder (major depressive disorder (September 1997), unspecified depressive disorder and unspecified psychotic disorder (May 2017)). Though the Veteran has current acquired psychiatric disorder, the preponderance of the evidence is against a finding of a linkage between the onset of the current acquired psychiatric disorder and a period of service. Rather, the most probative evidence shows that the Veteran's current acquired psychiatric disorder had no etiological relationship to a period of service, having onset years after his period of service (See May 2017 VA examination report). The September 1997 report of VA PTSD examination suggest that the Veteran's acquired psychiatric disorder onset due to his experiences in Korea (i.e., the psychologist explained that the Veteran was strongly influenced by his experiences in Korea and those experiences influenced his depression). However, though the psychologist found the Veteran to be a reasonably reliable historian, she acknowledged that the claims file had not been reviewed. To the extent this record represents evidence in favor of the claim the Board is affording it little probative value because it appears to be based on a history provided by the Veteran. LeShore v. Brown, 8 Vet. App. 406 (1995) (mere transcription of lay history, unenhanced by any additional medical comment by the transcriber, does not become competent medical evidence merely because the transcriber is a medical professional.); Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Elkins v. Brown, 5 Vet. App. 474 (1993); Sanchez-Benitez v. West, 13 Vet. App. 282 (1999) (medical evaluation that is merely a recitation of a veteran's self-reported and unsubstantiated history has no probative value). Thus, this treatment record is afforded little probative value. The more probative opinion is the one by the VA examiner in May 2017. The VA psychologist explained that the clinical record was inconsistent but placed the onset of the psychiatric symptoms to around the 1980's. The psychologist concluded that it could not be reasonably determined that the Veteran's service in Korea and/or exposure to events during that period served as a major contributing factor to his current psychiatric disorder. Accordingly, service connection for an acquired psychiatric disorder is denied. Ischemic Heart Disease The Veteran contends that he has heart disease related to his period of service, to include herbicide exposure therein. Service treatment records contain no documentation of complaints of or treatment for heart disease. His September 1968 Report of Separation examination reflects that heart clinical evaluation was normal. The September 2017 VA cardiology stress test treatment record reflects that the Veteran had no known coronary artery disease. Myocardial perfusion imaging was normal. The claim of service connection for ischemic heart disease must be denied. Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C.A. §§ 1110, 1131. Here, the Veteran has presented no evidence of and the more probative evidence establishes that the Veteran does not have ischemic heart disease. Thus, there can be no valid claim for service connection. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Veteran was not afforded a specific VA heart examination. On the facts of this case, however, an examination is not required. VA will provide a medical examination or obtain a medical opinion if the evidence indicates the existence of a current disability or persistent or recurrent symptoms of a disability that may be associated with an event, injury, or disease in service, but the record does not contain sufficient medical evidence to decide the claim. 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the claim does not meet these requirements for obtaining a VA medical opinion. Because the weight of the evidence demonstrates no current ischemic heart disease, no examination is required. The Veteran is not competent to link his acquired psychiatric disorder or ischemic heart disease to service. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (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 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). The Veteran is competent to describe the circumstances and incidents of his period of service and report injuries sustained therein. However, he is a lay person and is not competent to establish that his current acquired psychiatric disorder onset as a result thereof or that he has current ischemic heart disease related thereto. The Veteran is not competent to offer opinion as to etiology of any current acquired psychiatric disorder or claimed ischemic heart disease. The question regarding the etiology of such a disability is a complex medical issue that cannot to be addressed by a layperson. For these reasons, his allegations are non-specific and are no more than conjecture and do not rise to the type of evidence addressed by Jandreau. The claims of entitlement to service connection for an acquired psychiatric disorder and ischemic heart disease must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claims, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for an acquired psychiatric disorder, to include PTSD and depression is denied. Service connection for ischemic heart disease is denied. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs