Citation Nr: 1802036 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 14-08 415 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for an acquired psychiatric disability claimed as posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant and O.E. (appellant's spouse) ATTORNEY FOR THE BOARD T. Wishard, Counsel INTRODUCTION The Veteran had active military service from January 1967 to January 1970. This matter comes before the Board of Veterans' Appeals (Board) from a June 2010 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in San Diego, California. Jurisdiction is with the Oakland, California RO. In February 2017, the Veteran and a witness testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The Veteran waived RO consideration of any additionally received evidence. FINDINGS OF FACT The Veteran does not have PTSD or a depressive disorder causally related to service, but he does have a separate anxiety disorder causally related to service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disability manifested by anxiety and classified as "other specified trauma and stressor related disorder", and no other, have been met. 38 U.S.C.A. §§ 1101, 1110, 1154, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Legal Criteria Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154 (a). 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, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of posttraumatic stress disorder 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. Otherwise, the law requires verification of a claimed stressor. Analysis The Veteran contends that he has PTSD due to stressful events (e.g. incoming rocket attacks, seeing injured service-members) while serving in Vietnam (e.g. see 2009 VA Form 21-0781 and 2010 VA Form 21-4138). The Veteran's military personnel records reflect that he served in Vietnam from 1968 to 1969, that his military occupational specialty was in field artillery, and that he served in an Air Cavalry division. Thus, his assertion of being exposed to hostile military activity and being afraid for his safety are consistent with the circumstances of his service. The claims file includes 2009 Vet Center records which reflect that the Veteran had been attending PTSD classes and was diagnosed with PTSD under DSM- IV by licensed clinical social workers; however, when a claim is based on hostile military activity, a diagnosis of PTSD must be made by a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted. The diagnosis by a social worker is insufficient upon which to base service-connection. (The Board notes that the Veteran's DD 214 is not indicative of combat, his personnel records are not indicative of combat, and a May 2009 VA memorandum reflects a formal finding of a lack of information to corroborate a stressor.) VA Records in 2012 (e.g. April, July, and August 2012) reflect that the Veteran had a self-reported history of PTSD, and that he endorsed PTSD symptoms of nightmares, flashbacks, hypervigilance, and being easily startled. PTSD and major depressive disorder (MDD) were listed as diagnoses; however, the assessments specify that the Veteran had a history of depression and "possible" PTSD, and note that the Veteran did not meet Criteria A and B for an actual diagnosis. A September 2012 addendum record reflects that there is a "lack of consistency" in the Veteran's presentation and no identifiable Criterion A or Criterion B for the diagnosis of PTSD. Because of this, and the GAF score of 75-80, the Veteran was not admitted into the PTSD program. Subsequent records by residents in mental health reflect diagnoses of PTSD and major depressive disorder (see e.g. Drs. K. C, N. R, and S. L.) The Veteran underwent a VA examination in February 2014 at which time the examiner found that the did not have PTSD which conforms to the DSM-5 criteria because he denied symptoms of alterations in mood/cognition, and did not have PTSD which conforms to the DSM-IV because he did not endorse sufficient symptoms of avoidance. The examiner found that the Veteran had insufficient symptoms of major depression, and that his depressive disorder was attributable to tenuous family dynamics (e.g. his sons' drug and unemployment problems); thus, the Veteran's depressive disorder was not related to service. Finally, the examiner found that the Veteran's symptoms which were related to his service in Vietnam met the criteria for "other specified trauma and stressor related disorder" which the examiner found was equivalent to the diagnosis of anxiety disorder not otherwise specified under DSM-IV. The Veteran's claim was certified to the Board in September 2014; thus, DSM-5 criteria is appropriate in determining whether he has PTSD. See 79 Fed. Reg. 45,093.45,094 (Aug. 4, 2014). Nevertheless, the Board has considered all of the diagnoses and the professionals who examined the Veteran. With respect to service connection for PTSD specifically, as noted above, the diagnoses of social workers are insufficient to support a grant of service connection for PTSD based on fear of hostile military activity. In addition, notations in the records which are merely recitations by the Veteran that he has PTSD or his report that he has been diagnosed with such are insufficient upon which to base service connection. Finally, the Board notes that not only do the 2012 records reflect a lack of consistency in the Veteran's presentation and no identifiable Criterion A or Criterion B for the diagnosis of PTSD, but the 2014 VA examination report also notes a lack of PTSD under both DSM-IV and under DSM-5. Although other records noted above reflect a diagnosis of PTSD, they do not adequately reflect if such a diagnosis is self-reported, based on DSM-IV, based on DSM-V, or what if, anything, was responsible for the change from the Veteran not having a valid diagnosis in 2012 or 2014. Accordingly, the preponderance of the evidence is against a grant of service connection for PTSD. The Board acknowledges the Veteran's statements that he believes the opinions of Vet Center and VA treatment providers are more probative than the VA examiner. The probative value of medical opinions is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the adjudicator. Guarneri v. Brown, 4 Vet. App. 467, 470-71 (1993). There is no requirement that additional evidentiary weight be given to the opinion of a medical provider who treats a veteran; courts have repeatedly declined to adopt the "treating physician rule." See White v. Principe, 243 F.3d 1378, 1381 (Fed. Cir. 2001); Van Slack v. Brown, 5 Vet. App. 499, 502 (1993). In the present case, the 2014 VA examiner's report is the most extensive of the records and provides the most thorough history of the Veteran. Moreover, the Veteran has not been shown to have the experience, training, or education necessary to make a diagnosis of an acquired psychiatric disability, or to adequate distinguish whether his symptoms are best classified as PTSD or another type of mental disorder. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). In sum, and with consideration of the evidence of record, to include the opinions by all providers (i.e. Vet Center and VA clinicians), the Board finds that service connection is warranted for an anxiety disorder classified as "Other specified trauma and stressor related disorder". The preponderance of the evidence is against a grant of service connection for PTSD or a depressive disorder. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). In essence, the Veteran has an acquired psychiatric disability causally related to service and that disability is manifested in anxiety; however, it does not meet all the criteria necessary for it to be classified as PTSD. Regardless, he has a disability which warrants service connection. ORDER Entitlement to service connection for an acquired psychiatric disability manifested by anxiety and classified as "other specified trauma and stressor related disorder" is granted; service connection for any other acquired psychiatric disability is denied. ____________________________________________ M.C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs