Citation Nr: 1756613 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 11-13 406 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD E. Vample, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1968 to August 1970. This matter comes before the Board of Veteran's Appeals (Board) on appeal of an November 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. FINDINGS OF FACT 1. The Veteran does not have a current diagnosis of PTSD. 2. A psychiatric disability other than PTSD is not shown in service or for many years thereafter, and is not shown by competent evidence of record to be related to service. CONCLUSION OF LAW 1. The criteria for service connection for an acquired psychiatric disability, claimed as PTSD, have not been met. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A (2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.309 (2017). 2. The criteria for service connection for other psychiatric disorders other than PTSD have not been met. 38 U.S.C. 1110, 1131, 5103(a) (2012); 38 C.F.R. 3.159, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veteran's Claims Assistance Act VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See, e.g., 38 U.S.C. §§ 5103, 5103A and 38 C.F.R. § 3.159 (2017). In the instant case, VA provided adequate notice in letters sent to the Veteran. VA also has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement of relevant treatment records and providing an examination when necessary. 38 U.S.C.§ 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment records and VA examinations are associated with the claims file. This appeal was remanded by the Board in September 2016 in order to allow the Veteran to submit the information and evidence necessary to substantiate a claim for service connection for acquired psychiatric disorders other than PTSD, to obtain relevant VA treatment records, and to afford him a new examination. The examiners reviewed the accurate history, considered lay statements, and provided clinical findings and diagnoses. Specifically, the examiner clarified the Veteran's diagnosed conditions and their relationships to service, if any. Therefore, VA has met its duty to assist. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board is now satisfied there has been substantial compliance with the Remand. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). There is no indication of additional existing evidence that is necessary for a fair adjudication of the claims that are the subject of this appeal. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist. PTSD The Veteran is seeking service connection for PTSD, which he asserts is related to his experiences in the Republic of Vietnam. The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). 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). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253(1999). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. As set forth in the DSM-IV, a valid diagnosis of PTSD requires that a person has been exposed to a traumatic event in which both of the following were present: (1) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of herself or others, and (2) the person's response involved intense fear, helplessness, or horror. In this case, the Board determines that service connection for PTSD is not warranted, as he does not have a current diagnosis of this disorder. Specifically, the treatment records from the San Juan VAMC in December 2006 show that the Veteran's screening for PTSD was negative. Importantly, in April 2011, a VA examiner determined that the criteria for PTSD had not been met, instead diagnosing the Veteran with depression. The examiner specifically stated that while the Veteran stated experiencing stressors in service, he did not exhibit avoidance or other such symptoms related to PTSD. An April 2017 VA examination similarly concluded that the Veteran did not meet the diagnostic criteria for PTSD, noting that the most outstanding symptom presented by the Veteran has been that of intrusive recollection of events, and one avoidance symptom. These symptoms alone, however, did not constitute a diagnosis of PTSD. Furthermore, the examiner notes that no psychosocial stressors were mentioned by the Veteran's attending psychiatrist despite establishing a diagnosis of major depression and PTSD, until September 2011. The Board notes the September 2012 opinion of the primary care physician at Ponce Outpatient Mental Health clinic who opined that the Veteran's symptoms might be related to his experience in Vietnam. Moreover, the Veteran's treatment records from the Ponce Outpatient Clinic (San Juan VAMC) in October 2016, show a diagnosis of PTSD and major depressive disorder. When comparing the findings from the Veteran's treatment records and his VA examinations, greater probative value is placed on the conclusions of the VA examiners' determination that a diagnosis of PTSD is not warranted. The Federal Circuit has recognized the unique probative value of opinions provided by VA psychiatric examiners in the context of VA examinations for a number of reasons, to include the special training VA practitioners receive in conducting such examinations, the amount of quality review these examination reports receive, the ability to review the claims file, and VA programs to ensure consistency. See Nat'l Org. of Veterans' Advocates, Inc. v. Sec. Of Veterans Affairs, 669 F.3d 1340 (Fed. Cir. 2012) (citing 75 Fed. Reg. 39,843, 39,847-48 (July 13, 2010)). In determining that the Veteran does not have a current diagnosis of PTSD, the Board takes note of the holding by the United States Court of Appeals for Veterans Claims in McClain v. Nicholson, 21 Vet. App. 319 (2007), where it stated that a disorder need only be manifest at some point during the pendency of that claim, even if no disability is present at the time of the claim adjudication. However, McClain is not applicable here, as this is not a situation where the Veteran had a legitimate prior diagnosis that has since resolved. Here, the Board has determined that the weight of the clinical evidence is against the conclusion that he had ever been diagnosed with a disorder other than PTSD with depression. As service connection is not for application unless the evidence indicates that a current disability exists, service connection is not warranted for PTSD. See 38 U.S.C.A. § 1110 (West 2002); Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability). See also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Other Psychiatric Disorders The Board has also considered whether service connection is warranted for any of the Veteran's other diagnosed psychiatric disorders, but concludes that service connection is again not warranted. First, the Board recognizes that the Veteran has been diagnosed with several different psychiatric disorders. The April 2017 examiner cited diagnoses of major depressive disorder and mild anxious distress. The examiner also noted that the Veteran is not found to have symptoms that warrant a separate diagnosis of an anxiety disorder as the symptoms are very limited and only reported as happening when he is exposed to crowded public places. Additionally, the Veteran's attending psychiatrist attributed his symptoms of anxiety to non-compliance with prescribed medications. Furthermore, the examiner noted that there is no evidence of mental disorders, depression, or anxiety in all the years following his discharge in military service until he became depressed over his diagnosis of a polyp in 2004. Service connection may be presumed for certain chronic diseases, including psychosis, which develop to a comprehensible degree within one year after discharge from service, even though there is no evidence of the disease during active service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. 1101, 1112, 1113, 1137 (2012); 38 C.F.R. 3.307, 3.3099a) (2017). However, the Veteran's psychiatric disabilities are not considered psychosis and depression is not considered a chronic disease. See Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013); 38 C.F.R. 3.384. In this case, the service connection is also not warranted for an acquired psychiatric disorder other than PTSD. Specifically, the service treatment records do not reflect treatment for an acquired psychiatric disorder in service. Notably, no psychiatric symptoms were observer at his separation examination in June 1970. In fact, the earliest indication of a psychiatric disorder was not until over 30 years later. Therefore, continuous symptoms since service have not been shown on a clinical basis. As part of this claim, the Board recognizes the Veteran and his wife's statements regarding his history of symptoms. In this regard, while the Veteran is not competent diagnose a psychiatric disability such as depression, as it may not be diagnosed by its unique and readily identifiable features, and thus requires a determination that is "medical in nature," he is nonetheless competent to testify about the presence of observable symptomatology, which may provide sufficient support for a claim of service connection, if credible, regardless of the lack of contemporaneous medical evidence. Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, the Board determines that the Veteran's reported history of continued symptomatology since active service, while competent, is nonetheless not credible. As an initial matter, the Board cannot ignore that approximately 35 years elapsed from the time he left active duty and the first notation of treatment in service. Moreover, the Board notes that the Veteran was receiving benefits from VA in 1973, but failed to mention his disorder that he now claims. The fact that the Veteran was aware of the VA benefits system, but made no reference to the disorder he claims now weighs heavily against his credibility. Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011)(Lance, J., concurring) (discussing the distinction between cases in which there is a complete absence of any evidence to corroborate or contradict the testimony, and cases in which there is evidence that is relevant either because it speaks directly to the issue or allows the Board as factfinder to draw a reasonable inference). Therefore, continuity is not established based on the clinical evidence of record or the Veteran's statements. Service connection may also be granted when the evidence establishes a medical nexus between active duty service and current complaints. In this case, the Board finds that the weight of the competent evidence does not attribute the Veteran's claimed disabilities to active duty, despite his contentions to the contrary. There is no clinical evidence in the record relating the Veteran's current acquired psychiatric disability to active duty service. More importantly, there is a medical opinion that weighs against the claim. Specifically, as noted by a VA examiner who provided a medical opinion in April 2017, the examiner stated that it would be less likely than not that the claimed condition would be related to military service. The examiner cited the Veteran's military treatment records, which were silent for any mental health treatment. In arriving at this conclusion, the Board has also considered the statements made by the Veteran relating his acquired psychiatric disability to his active service. The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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." Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). In this case, the Board acknowledges that the Veteran is competent to testify about any psychiatric symptoms he experienced in service despite his status as a lay person. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, the Veteran is not competent to provide testimony regarding the etiology of an acquired psychiatric disability. See Jandreau, 492 F.3d at 1377, n.4. Because acquired psychiatric disorders are not diagnosed by unique and readily identifiable features, they do not involve a simple identification that a layperson is competent to make. Therefore, the unsubstantiated statements regarding the claimed etiology of the Veteran's acquired psychiatric disorder are found to lack competency. Therefore, the Board finds that the weight of the competent evidence does not attribute the Veteran's claimed acquired psychiatric disability to military service despite his contentions to the contrary. In reaching the above conclusion, the Board also considered the doctrine of reasonable doubt. 38 U.S.C. § 5107(b). However, as the most probative evidence is against the claim, the doctrine is not applicable in this case. See also, e.g., Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for an acquired psychiatric disability, to include PTSD, is denied. ____________________________________________ B.T. KNOPE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs