Citation Nr: 1753858 Decision Date: 11/24/17 Archive Date: 12/01/17 DOCKET NO. 09-31 595 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depressive disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran (Appellant) ATTORNEY FOR THE BOARD E. Choi, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from February 1976 to January 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the RO in Milwaukee, Wisconsin, which in pertinent part, denied service connection for PTSD. In order to encompass all claimed symptoms of disability, the Board has broadened and reframed the issue on appeal to entitlement to service connection for an acquired psychiatric disorder, to include PTSD and depressive disorder, in accordance with the United States Court of Appeals for Veterans Claims (Court) decision in Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that a claim for benefits for one psychiatric disability also encompassed benefits based on other psychiatric diagnoses and should be considered by the Board to be within the scope of the filed claim). In April 2014, the Veteran testified at a Travel Board hearing held at the RO in Milwaukee, Wisconsin, before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the electronic file on the "Virtual VA" system. In May 2017, the Board remanded the matter to the RO for further development. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Failure of the Board to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As discussed below, the Board finds that the May 2017 Board remand directives were complied with, and the matter has been properly returned to the Board for appellate consideration. The Board has reviewed the electronic file on "Virtual VA" and the Veterans Benefits Management System (VBMS) to ensure a complete review of the evidence in this case. FINDINGS OF FACT 1. The Veteran has a current diagnosis for depressive disorder. 2. The Veteran does not have a current diagnosis for PTSD. 3. The current depressive disorder is not related to service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, to include PTSD and depressive disorder, have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102 , 3.159, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and to Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duties to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim and of the relative duties of VA and the claimant for procuring that evidence. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b) (2017). Such notice should also address VA's practices in assigning disability ratings and effective dates for those ratings. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Notice should be provided to a claimant before the Agency of Original Jurisdiction's initial unfavorable decision on a claim. 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In this case, the RO provided notice to the Veteran in November 2008, prior to the May 2009 rating decision, which denied service connection for PTSD, and informed the Veteran of the evidence needed to support a service connection claim. The Veteran was notified of the evidence not of record that was necessary to substantiate the claims, VA and the Veteran's respective duties for obtaining evidence, and how disability ratings and effective dates are assigned. During the April 2014 Travel Board hearing, the undersigned VLJ heard the Veteran's testimony as to the issue of service connection for an acquired psychiatric disorder. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues, and (2) the duty to suggest the submission of evidence that may have been overlooked. In this case, during the April 2014 Travel Board hearing, the undersigned VLJ specifically advised the Veteran and representative that evidence linking the acquired psychiatric disorder to military service was still needed; thus, the Board concludes that VA has satisfied its duty to notify the Veteran. VA has also satisfied its duty to assist the Veteran in the development of the claim. First, VA satisfied its duty to seek and assist in the procurement of relevant records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Specifically, the information and evidence that have been associated with the claims file include service treatment records, service personnel records, VA treatment records, VA examination reports, Social Security Administration (SSA) records, lay statements, and the transcript from the April 2014 Board hearing. Second, VA satisfied its duty to obtain a medical opinion when required. See 38 U.S.C. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). As discussed above, the Board's May 2017 decision remanded the matter to the RO for further development. The Board's May 2017 remand directives instructed the RO to obtain updated VA treatment records from April 2016, to schedule a VA examination, and to obtain a VA medical opinion. Upon remand, updated VA treatment records were obtained in May 2017, and the Veteran was provided with a VA examination in June 2017, the report for which has been associated with the claims file. The Board finds that the June 2017 VA examination report, taken in light of the other lay and medical evidence of record, is thorough and adequate and provides a sound basis upon which to base a decision with regard to the issue on appeal. The VA examiner reviewed the claims file, personally interviewed and examined the Veteran, including eliciting a history, provided detailed findings, and offered an opinion with supporting rationale. In light of the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal, and no further development is required to comply with the duty to assist in developing the facts pertinent to the appeal. Service Connection for an Acquired Psychiatric Disorder Service connection may be granted for a disability resulting 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 generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran is currently diagnosed with depressive disorder, which is not listed as a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) for "chronic" in-service symptoms and "continuous" post-service symptoms do not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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) (2012); 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). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that 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). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by, or obtained on behalf of, the appellant be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). In this case, the Veteran asserts that an acquired psychiatric disorder is the result of military service. Specifically, the Veteran contends that the suicides of several service members and the mock lynching of another during active service had a significant impact on the Veteran's mental state and resulted in the development of an acquired psychiatric disorder. See September 2010 and February 2017 informal hearing briefs; April 2014 Board hearing transcript. At the outset, the Board finds that the Veteran has a current diagnosis for depressive disorder. Although a June 2017 VA examination report reflects no diagnosed psychiatric disorder, an April 2009 VA treatment record shows the Veteran was diagnosed with recurrent major depressive disorder; thus, the record demonstrates the Veteran has a diagnosed depressive disorder during the claim period on appeal. See McClain v. Nicholson, 21 Vet. App. 319 (2007) (service connection may be warranted if there was a disability present at any point during the claim period, even if it is not currently present); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (when the record contains a recent diagnosis of disability immediately prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency). The Board next finds that the weight of the evidence shows no current PTSD diagnosis. Although the Veteran's November 2008 claim was filed for PTSD, neither VA mental health treatment records nor the June 2017 VA examination report contain a confirmed diagnosis of PTSD. While a February 2010 VA treatment record reflects a positive PTSD screening, which resulted in the inclusion of PTSD as a comorbid condition in another February 2010 VA cardiovascular treatment record, there is no confirmed diagnosis of PTSD by a mental health professional. The Veteran does not have the knowledge, training, or experience to self-diagnose PTSD. See Young v. McDonald, 766 F.3d 1348, 1353 (Fed. Cir. 2014) ("PTSD is not the type of medical condition that lay evidence . . . is competent and sufficient to identify"); Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) (stating that it "is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"). While there is some suggestion in the record that the Veteran witnessed either the suicide and/or the mock lynching of servicemen during service (see September 2010 informal hearing brief), the weight of the evidence shows that the Veteran did not personally witness either of these events. During the April 2014 Board hearing, the Veteran testified that he had heard about the mock lynching during service, which had upset him tremendously. The Veteran also testified that, while he was in basic training, several service members had hung themselves in the laundry room, which had also upset him. During the June 2017 VA examination, the Veteran reported learning of five people in his platoon who had committed suicide, but conveyed he did not witness this and could not recall the service members' names. Additionally, the Veteran stated that during basic training he read a newspaper article about a man who had been hung from a tree and reportedly lived, but that he also did not witness this event. Because the Veteran had not witnessed either of the reported stressor events and the individuals involved were not close relatives or friends, the June 2017 VA examiner determined that neither stressor events were adequate to support a diagnosis of PTSD. After a review of all the evidence, lay and medical, the Board finds that the current acquired psychiatric disorder did not have its onset during, and is not otherwise causally or etiologically related to military service. During the April 2014 Board hearing, the Veteran testified that the onset of psychiatric symptoms began during service and such symptoms continued following service separation. The Veteran testified of racial tension amongst service members generally, learning of several service members' suicide, and learning of the mock lynching of another service member. He contends these claimed events resulted in the onset of psychiatric symptoms during service. Service treatment records do not reflect any treatment or diagnosis for any psychiatric symptoms and a January 1977 service separation examination found the Veteran to be psychiatrically normal; however, on the corresponding January 1977 Report of Medical History, the Veteran endorsed symptoms of depression and excessive worry associated with family problems at home. During the April 2014 Board hearing, the Veteran described the symptoms of depression and excessive worry that was noted on the January 1977 Report of Medical History as relating to his wife being extremely nervous about the Veteran's military service, particularly when it immediately followed the Vietnam War. Further, the weight of the evidence shows that the current acquired psychiatric disorder manifested many years after service and is not related to service. The June 2017 VA examination report reflects the Veteran initially began receiving mental health treatment in conjunction with substance abuse treatment programs for alcohol and cocaine dependence in 2001. A December 2008 VA treatment record reflects the Veteran reported a 40 year history of intermittent cocaine abuse with a history of alcohol and cannabis use. The Veteran reported his mental health status was moderately affected by some depressive feelings and self-esteem problems but denied ever being hospitalized for mental health problems and was not receiving psychotropic medication at that time. The December 2008 VA treatment record reflects a diagnosis of cocaine dependence, sustained partial remission. A January 2009 VA treatment record reflects the Veteran underwent a psychosocial assessment, during which no mental health diagnosis other than polysubstance dependence was rendered. The January 2009 VA treatment record notes a history of alcohol and cocaine abuse that started when the Veteran began using substances when he was 16 years old. During the January 2009 VA psychosocial assessment, the Veteran denied any difficulties dealing with military service and conveyed confidence that his mental health was not an issue at the time. The earliest evidence of a psychiatric diagnosis is not shown until 2009 in an April 2009 VA treatment record. The April 2009 VA mental health progress note reflects the Veteran was seen at his request as he had missed a primary care appointment that was scheduled for two days prior. The April 2009 VA treatment record shows diagnoses of recurrent major depressive disorder, unspecified cocaine abuse, and psychotic disorder was ruled out; the April 2009 VA provider did not indicate the basis for the diagnosis of recurrent major depressive disorder. Moreover, the June 2017 VA examination report contains the VA examiner's opinion that the Veteran's acquired psychiatric disorder is less likely than not that related to the reported suicides and mock lynching during service. Although no psychiatric disorder had been diagnosed during the June 2017 VA examination, the VA examiner noted that primary diagnosis and treatment for mental health issues in the past had been for substance abuse, with a secondary diagnosis of major depression that occurred in response to the negative consequences that resulted from substance use, an unconventional lifestyle, and normal bereavement following the death of numerous persons close to the Veteran. There are no additional medical opinions in the record to show that the Veteran's current acquired psychiatric disorder is related to military service. Although the Veteran, as a lay person, is competent to report any psychiatric symptoms he has experienced at any given time, under the facts of this case that include no in-service symptoms and no symptoms following service, he is not competent to diagnose a psychiatric disorder because a psychiatric diagnosis requires medical expertise and falls outside the realm of common knowledge of a lay person. See Young, 766 F.3d at 1353. The DSM-IV cautions that the "proper use of these criteria requires specialized clinical training that provides both a body of knowledge and clinical skills." The "purpose of DSM-IV is to provide clear descriptions of diagnostic categories in order to enable clinicians and investigators to diagnose" various mental disorders. The evidence in this case shows symptoms of depressive disorder manifested many years after service separation, and such symptoms are secondary to a long history of alcohol and substance abuse. Numerous VA treatment records, including the reported history during the June 2017 VA examination, reflect the Veteran reported illegal drug use before, during, and after service; therefore, even assuming that the Veteran's acquired psychiatric disorder stemmed from drug use during service, the Veteran's repeated in-service and post-service illegal substance abuse would constitute willful misconduct, such that service connection for an acquired psychiatric disorder could not be established. 38 U.S.C. § 105 (2012); 38 C.F.R. § 3.301 (2017). For these reasons, the Board finds that a preponderance of the evidence is against the claim for service connection for an acquired psychiatric disorder, to include PTSD and depressive disorder, and the claim must be denied. Because the preponderance of evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for an acquired psychiatric disorder, to include claimed PTSD and depressive disorder, is denied. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs