Citation Nr: 1753353	
Decision Date: 11/21/17    Archive Date: 12/01/17

DOCKET NO.  14-08 818	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), bipolar disorder, anxiety, and depression.


REPRESENTATION

Veteran represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

I. Umo, Associate Counsel


INTRODUCTION

The Veteran served active duty in the U.S. Army from July 1971 to July 1974.

This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied the Veteran's claim for posttraumatic stress disorder.  The Veteran filed his notice of disagreement in September 2012, and timely filed his substantive appeal in March 2014.

The Veteran initially filed a claim to establish service connection for PTSD.  However, a September 2009 VAMC psychiatry note indicated that the Veteran has been diagnosed with bipolar disorder, alcohol dependence and tobacco use disorder.  Additionally, in an August 2009 private medical record, the Veteran was diagnosed with anxiety.  In Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the United States court of Appeals for Veterans Claims (CAVC) held that the scope of a mental health disability claim includes any mental disorder that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and other information of record.  In consideration of this holding and the diagnosis of bipolar disorder and anxiety, the Board has recharacterized the claim as one for entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), bipolar disorder, anxiety, and depression. 


FINDING OF FACT

The preponderance of the competent evidence of record demonstrates that the Veteran does not have a diagnosis of PTSD at any time during the appeal period and there is no competent evidence of record linking any other mental disorder to active duty or to a service connected disability.  


CONCLUSION OF LAW

The criteria for service connection for an acquired psychiatric disorder has not been met.  38 U.S.C. §§ 1101, 1110, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 4.125 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  VA's Duty to Notify & Assist

VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits.  38 U.S.C. §§ 5100, 5102, 5103, 5103A and 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).

The duty to notify has been met.  See the July 2011 VCAA letter.  Neither the Veteran, nor his representative, has alleged prejudice with regard to notice.  The Federal Court of Appeals has held that "absent extraordinary circumstances ... it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran ...."  Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).  In light of the foregoing, nothing more is required.

The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C. §§ 5103, 5103A (West 2014), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2016), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim.  

The record reflects that all available records pertinent to the claim have been obtained.  The Veteran has been afforded appropriate VA examinations which include etiology opinions (or the lack thereof) sufficient to accurately adjudicate this claim.  The Veteran has not identified any outstanding evidence that could be obtained to substantiate the claim; the Board is also unaware of any such evidence.  

Accordingly, the Board will address the merits of the claim.  




Service Connection

In July 2010, the Veteran submitted a claim of entitlement to service connection for PTSD.  

To establish service connection, the evidence must show: (1) a current disability; (2) an in-service incurrence of the disability; and (3) a causal relationship between the disability and service, the so-called "nexus" requirement.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 

Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if pre-existing such service, was aggravated by service.  This may be accomplished by affirmatively showing inception or aggravation during service.   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 disability was incurred in service.  38 C.F.R. § 3.303(d).

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary.  The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  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. § 5107 (West 2014);          38 C.F.R. § 3.102 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

Service connection for PTSD requires medical evidence establishing a diagnosis of the condition, credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed in-service stressor.  Cohen v. Brown, 10 Vet. App. 128 (1997). 

Establishing service connection for PTSD requires that there be (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; (3) and credible supporting evidence that the claimed in-service stressor actually occurred.  38 C.F.R. § 3.304(f).  The diagnosis of a mental disorder must conform to the Diagnostic and Statistical Manual of Mental Disorders and be supported by the findings of a medical examiner.  38 C.F.R. § 4.125(a).

The diagnostic criteria set forth in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, (5th ed. 2013) (DSM-V) for mental disorders have been adopted by the VA.  38 C.F.R. § 4.125 (2017).  Prior to August 4, 2014, the Diagnostic and Statistical Manual of Mental Disorders, (4th ed. 1994) (DSM-IV) was in effect.

The Board finds that service connection is not warranted for PTSD, as the medical evidence of record fails to show that the Veteran has been diagnosed with PTSD.  A December 2006 VA clinical record reveals that a PTSD screen was determined to be negative at that time.  An August 2009 social work note reveals the Veteran was recently released from Arcadia Psychological Hospital for trying to kill himself.  The medical record showed that prior to August 2009, the Veteran had no history of a psychiatric disorder.  After his hospitalization, the Veteran was diagnosed with bipolar disorder and alcohol abuse.  Subsequent records do not indicate that the Veteran has been diagnosed with PTSD.  

Even if the Veteran was diagnosed with PTSD, service connection is not warranted as the Veteran's claimed non-combat stressors could not be verified.  The Veteran informed VA that, on two separate occasions, the Veteran found soldiers who had died from drug overdoses.  VA attempted to verify the stressors without success.  A formal finding of unavailability of information required to verify the in-service stressful events was completed in February 2012. A non-combat stressor requires collaboration.  The lack of a verified stressor upon which to base a PTSD diagnosis also weighs against the claim.  

The Board finds that service connection is not warranted for any other acquired psychiatric disorder to include bipolar disorder, anxiety, and depression.  The Veteran has not alleged that he had a mental disorder (other than PTSD) which was due to his military service and the medical records do not support such a fact pattern.  

There is a current disability.  The Veteran has been diagnosed with bipolar disorder and anxiety in August 2009.  See August 2009 Acadia Abilene Medical Record.  

There is no evidence of an in-service disease or injury.  A review of the service treatment records showed no findings, treatment, or diagnosis of an acquired psychiatric condition.  At the time of separation, the Veteran's separation examination was normal and clinical evaluation of the Veteran's psychiatric performance was determined to be normal.  The Veteran does not allege such a fact pattern.  

There is no competent evidence linking a current acquired psychiatric disorder to the Veteran's active duty service.  The first post-service medical evidence which addresses mental disorders is dated many years after the Veteran's discharge and does not indicate that that the Veteran has a mental disorder which was incurred in or aggravated by active duty.  This medical evidence tends to show that the Veteran's psychiatric disorder began many years after discharge and is not due to active duty but rather due to personal and financial problems.  It was noted in an August 2009 clinical record that the Veteran denied having a formal psychiatric history prior to his hospitalization in 2009.  The bipolar and anxiety diagnosis resulted after the Veteran tried to commit suicide in 2009 because his three-year relationship with a woman was ending.  Another clinical record dated in August 2009 includes the annotation that the Veteran had no history of mental illness until 2009.  A September 2009 VA clinical record reveals the Veteran was being followed-up for bipolar disorder.  He informed the clinician of the presence of variable anxiety and depression which he reported was related to finances as well as other issues.  The pertinent diagnosis was bipolar disorder.  None of the post-service medical evidence links a current acquired psychiatric disorder to active duty and the Veteran does not allege such a fact pattern (other than for PTSD.)

The only evidence which links a mental disorder to active duty is the Veteran's own allegations.  The Board finds these allegations are outweighed by the medical evidence of record which indicates that the Veteran does not have PTSD and he does not have any other acquired psychiatric disorder which was linked to active duty.  As a lay person, the Veteran is not competent to diagnose a mental disorder nor is he competent to link a mental disorder to his active duty service.  The medical evidence was based on observations and examination conducted by trained health care professionals who are qualified to diagnose mental health disorders.  Greater probative weight is placed on the negative medical evidence of record.  

The preponderance of the evidence is against a finding that the Veteran's acquired psychiatric disorder to include PTSD was incurred during service.  Likewise, as the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable, and the claim must be denied.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102 (2017); Gilbert, 1 Vet. App. at 53-56. 


ORDER

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




____________________________________________
G. A. Wasik
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs