Citation Nr: 1756020 Decision Date: 12/05/17 Archive Date: 12/15/17 DOCKET NO. 16-24 641A ) 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, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Casadei, Counsel INTRODUCTION The Veteran served on active duty from March 1957 to January 1961. This matter comes before the Board of Veterans' Appeals (Board) from an August 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied service connection for PTSD with alcoholism and depression. The issue was previously remanded by the Board in May 2015 for further evidentiary development. This was accomplished, and the claim was readjudicated in an October 2017 supplemental statement of the case. For this reason, the Board's remand orders have been substantially complied with, and it may proceed with a decision at this time. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The Veteran does not have current diagnosis of PTSD in accordance with 38 C.F.R. § 4.125 (a) (2017). 2. The Veteran's current acquired psychiatric disorders, aside from claimed PTSD, are not related to his military service. CONCLUSION OF LAW The criteria to establish service connection for an acquired psychiatric disorder, to include PTSD, have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist In this case, neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air 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). Only chronic diseases listed under 38 C.F.R. § 3.309 (a) (2017) are entitled to the presumptive service connection provisions of 38 C.F.R. § 3.303 (b). Walker v. Shinseki, 708 F.3d 1331 Fed. Cir. 2013). Establishing 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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The U.S. Court of Appeals for Veterans Claims (Court) has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Specifically for PTSD claims, the record must include (1) medical evidence diagnosing PTSD in conformance with the Diagnostic and Statistical Manual of Mental Disorders, 4th Edition (DSM-IV or DSM-5) criteria; (2) a link, established by medical evidence, between a Veteran's present symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor actually occurred. See 38 C.F.R. § 3.304 (f); Cohen v. Brown, 10 Vet. App. 128, 139 (1997). Notably, VA implemented use of DSM-5, effective August 4, 2014. The Secretary, VA, has determined, however, that DSM-5 does not apply to claims certified to the Board prior to August 4, 2014. See 79 Fed. Reg. 45093, 45094 (Aug. 4, 2014). Since the Veteran's appeal was certified to the Board after August 4, 2014, DSM-5 is for application. 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"). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382(1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment, including by a veteran. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner's opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). 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.A. § 5107 (b); 38 C.F.R. § 3.102 . Analysis The Veteran asserts that he has a psychiatric disorder, namely PTSD, as a result of him witnessing an accidental explosion of a 200 pound artillery shell that exploded due to human error on September 2, 1960 in Camp Kasserine, Germany. He stated that he saw body parts and that his close friend E.J. was killed in the explosion. On the morning in question, the Veteran stated that he was on TDY order assigning him to the 12th Cavalry 3rd Armed Division which was signed by Personnel Officer CWO R. and the 2nd Battalion 2nd Armed Cavalry Adjutant 1st lieutenant J.L.D. He explained that he was on temporary duty (TDY) on many occasions while stationed in Germany because he had a secret clearance, spoke, read, and wrote (and typed) German fluently. In addition, as radio maintenance personnel, he was able to operate all types of radio equipment. Furthermore, he indicated that he was called upon to act as a liaison between American and German Officers at Grafenwoehr training area on a regular basis. The Defense Personnel Records Information Retrieval System (DPRIS) indicated that: "A review of the historical records available to this office document that on the morning of September 2, 1960, sixteen soldiers were killed and twenty-seven were wounded when a 200 pound artillery shell landed amongst them at Camp Kasserine, Grafenwoehr, Germany. All men were from the 3rd Reconnaissance Squadron, 12th Cavalry, 3rd Armored Division. The shell, which had an incorrect charge, was due to human error. Specialist Fourth Class (SP4) E.J. was one of the soldiers killed." Thus, while the Veteran was stationed in Germany at the time of the explosion, neither DPRIS nor the Joint Services Research Records Center (JSRRC) was able to place the Veteran at Camp Kasserine on the morning of the explosion. In other words, the historical research shows that the Veteran was stationed in Germany at the time as a member of the Troop H, 2nd Armored Calvary, but does not show his unit's exact location on the day in question and whether or not it was tasked to Camp Kasserine. Regardless of whether the Veteran's in-service stressor event has been verified, the threshold consideration for any service connection claim is the existence of a current disability. The Board finds that the weight of the evidence demonstrates that the Veteran does not have a current PTSD diagnosis consistent with 38 C.F.R. § 4.125 (a). VA treatment notes include various psychiatric evaluations. In a November 2011 VA mental health consultation notes, the examiner discussed the Veteran's symptoms, in-service stressor of witnessing an explosion, discussed the Veteran's psychiatric history and treatment, included a mental status examination, and provided the Veteran with a depression and PTSD screen. The examiner then diagnosed the Veteran with Axis I depression and ruled out PTSD. In a May 2012 VA treatment notes, the Veteran was seen for an evaluation and management for depression. A mental status examination was performed and the VA psychologist specifically ruled-out PTSD and diagnosed the Veteran with depression. In June 2012, August 2012, November 2012, January 2013 and April 2013 VA psychiatry notes, the Veteran was diagnosed with depression and PTSD, but there was no discussion as to the DSM diagnostic criteria. The diagnoses were provided by a VA social worker. During a July 2017 VA PTSD examination, a VA psychologist indicated that the Veteran exhibited symptoms of PTSD, but the examiner found that the Veteran's symptoms did not rise to the required level for a diagnosis of PTSD under the DSM-5 diagnostic criteria. The Board assigns great probative weight to the July 2017 VA examination findings, as the examiner examined the Veteran, reviewed his claims file, to include the Veteran's lay contentions. The examination findings were also based on the DSM-5 diagnostic criteria. The Board recognizes the June 2012, August 2012, November 2012, January 2013 and April 2013 VA psychiatry notes, which indicated a PTSD diagnosis rendered by a VA social worker. However, a licensed psychiatrist or psychologist is required to make the initial assessment to determine if the Veteran's meets the required diagnostic criteria for PTSD. See 38 C.F.R. § 3.304 (f). Thus, the Board finds that those diagnoses of PTSD does not satisfy the requirements of 38 C.F.R. § 4.125 (a)(2017), thus is not adequate and offers no probative value. To the extent that the Veteran offers his lay statements as evidence of a current PTSD diagnosis, such attempt fails. The Veteran, as a lay person, is competent to report any observable psychiatric symptoms he has experienced; however he is not competent to diagnose PTSD, or any other psychiatric disability for that matter, because such a diagnosis requires medical expertise and falls outside the realm of common knowledge of a lay person. Young v. McDonald, 766 F.3d 1348, 1353 (Fed. Cir. 2014) (holding that "PTSD is not the type of medical condition that lay evidence . . . is competent and sufficient to identify"); Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (holding that a claimant without medical expertise cannot be expected to precisely delineate the diagnosis of his mental illness). The Introduction to the DSM-5 specifically provides a "Cautionary Statement" that the "Use of DSM-5 to assess for the presence of a mental disorder by nonclinical, nonmedical, or otherwise insufficiently trained individuals is not advised." Consequently, the Veteran's purported opinion attributing the current psychiatric symptoms to a PTSD diagnosis is of no probative value. Additionally, any purported lay contentions are far outweighed by the probative July 2017 VA opinion that is based on a review of history and clinical observation, and it is factually accurate and contains sound reasoning. Thus, the only competent medical opinion of record that addresses whether the Veteran has a current PTSD disability is unfavorable to the claim. Significantly, the Veteran has not presented competent evidence showing that he has PTSD in accordance with 38 C.F.R. § 4.125 (a). See 38 U.S.C. § 5107 (a) ("[A] claimant has the responsibility to present and support a claim for benefits."); Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009) (holding that it is the claimant's general evidentiary burden to establish all elements of the claim). In the absence of a current disability, the PTSD claim must fail. As the preponderance of the evidence is against the PTSD claim, the benefit-of-the-doubt doctrine is not for application, and the appeal must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. It is unnecessary for the Board to address the remaining elements of his service connection claim because the threshold element of a current disability has not been met. In the absence of a current diagnosis of PTSD, the Veteran does not meet the threshold element of service connection claim. The claim must therefore be denied. See 38 U.S.C. § 5107 (a); see also Fagan, supra. Further, although VA post-service treatment notes and the July 2017 VA examination show diagnoses of depression and alcohol use disorder (in remission), there is entirely no probative evidence of any psychiatric problems during service. Available service treatment records, and other evidence during that time period, do not identify any complaints, treatment, or diagnosis related to a psychiatric disorder in service. In a January 1961 Report of Medical Examination, conducted at service separation, a clinical psychiatric evaluation was normal and there was no indication that the Veteran had any psychiatric symptoms. Similarly, in a January 1961 Report of Medical History, completed by the Veteran at service discharge, he specifically checked "NO" as to "frequent trouble sleeping," "depression or excessive worry," "excessive drinking habit," or "nervous trouble of any sort." The earliest indication of psychiatric issues is shown years after service discharge. In a September 1982 discharge summary from the Smithers Alcoholism Treatment Center, the Veteran was admitted for disease of alcoholism. There was no indication at that time of a psychiatric disorder or any reports by the Veteran that he had symptoms of depression since service. Instead, the Veteran reported that he was going through a divorce. There is also no competent evidence of a nexus between any current psychiatric disorder and service. Notably, the Veteran's post-service treatment records do not relate any psychiatric treatments, evaluations, or symptoms to service. Moreover, as the July 2017 VA examiner opined that the Veteran's unspecified depressive disorder with anxious distress was not caused by or a result of service. In support of this opinion, the examiner stated that there was no objective medical evidence found that he had a mental disorder in service or developed this disorder within a short time after discharge. It was also noted that anxiety and depression were very common in the general population and the Veteran had multiple undercurrent stressors since his discharge 56 years ago. For the reasons discussed above, the Board finds that the weight of the evidence, both lay and medical, demonstrates that the Veteran does not have a current diagnosis of PTSD as required under 38 C.F.R. § 4.125 (a), and the currently diagnosed psychiatric disorders, aside from claimed PTSD, are neither shown in service nor shown to be otherwise related to it. As the preponderance of the evidence is against service connection for a psychiatric disorder, to include PTSD, the claim must be denied, and there is no reasonable doubt to be resolved. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for an acquired psychiatric disorder, to include PTSD, is denied. ____________________________________________ S. B. MAYS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs