Citation Nr: 1802938 Decision Date: 01/12/18 Archive Date: 01/23/18 DOCKET NO. 10-20 886 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD), and to include depression. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Laffitte, Associate Counsel INTRODUCTION The Veteran had active duty service from March 1970 to February 1972. This matter comes before the Board of Veterans Appeals (Board) from a May 2012 rating decision from the Department of Veterans' Affairs (VA) Regional Office (RO) in Houston, Texas. In October 2015 the Veteran testified before the undersigned Veterans Law Judge (VLJ) via video-conference. A transcript of the hearing has been associated with the claims file. This matter was previously before the Board in February 2016 in which the Board remanded the matter for further development after reopening the Veteran's service connection claim for PTSD and recharacterizing it to include depression. The matter was subsequently remanded again in November 2016 for further development. As remand directives have been substantially complied with, the Board will proceed with adjudication of the case. Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT The Veteran does not have a psychiatric disorder, to include PTSD and depression, that is etiologically related to the Veteran's active duty service. CONCLUSION OF LAW The criteria have not been met to establish service connection for an acquired psychiatric disorder, to include PTSD, and to include depression. 38 U.S.C. §§ 1110, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f), 4.125 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION VA has complied with the duties to notify and assist in this case. The Veteran has not raised any procedural arguments regarding the notice or assistance provided. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Service Connection for PTSD Under VA law, service connection is available for a current disability resulting from disease contracted or an injury sustained while on active duty service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017). Service connection may also be granted for disease diagnosed after discharge where incurred in service. 38 C.F.R. § 3.303(d) (2017). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an 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 (Fed. Cir. 2009); Hickson v. West, 12 Vet.App. 247, 253 (1999). There is specific VA criteria to establish service connection for PTSD: (1) medical evidence diagnosing PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). The requirement of an in-service stressor is established by the veteran's testimony alone if he is shown to have engaged in combat with the enemy. See 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d); Dizoglio v. Brown, 9 Vet. App. 163, 164 (1996). If VA determines the veteran engaged in combat with the enemy and his alleged stressor is combat-related, then his lay testimony or statement is accepted as conclusive evidence of the stressor's occurrence and no further development or corroborative evidence is required provided that such testimony is found to be "satisfactory," i.e., credible, and "consistent with the circumstances, conditions, or hardships of service." See 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). For an in-service stressor not related to participation in combat, independent corroboration by outside evidence is required beyond the veteran's lay testimony alone. The record must contain credible supporting information from an independent source that corroborates his testimony or statements, such as service records. See Cohen v. Brown, 10 Vet. App. 128, 146-47 (1997). See also Moreau v. Brown, 9 Vet. App. 389, 394-95 (1996). The available sources for corroboration of a claimed stressor are not necessarily limited to service records, but may also include other sources of evidence such as lay statements from third-party individuals. See Cohen, 10 Vet. App. at 143 (indicating that corroborating sources need not be found only in service records, contrary to what was previously set forth under the VA Adjudication Manual, M21-1, Part VI, para 7.46(f) (Sept. 21, 1992); and M21-1, Subch. XII, para 50.45(d) (1989)). Apart from the above provisions, VA revised the regulation governing adjudication of claims for service connection for PTSD, effective July 13, 2010. See 75 Fed. Reg. 39,843, later codified at 38 C.F.R. § 3.304(f)(3). The updated regulation eased the requirement that there be objective corroboration of a claimed in-service stressor. Under this standard, 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 confirms that the claimed stressor is adequate to support a diagnosis of PTSD, and that the veteran's symptoms are related to the claimed stressor, 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. The determination as to whether the requirements for service connection are met is based on an analysis of all the relevant evidence of record, medical and lay, and the evaluation of its competency and credibility to determine its ultimate probative value in relation to other evidence. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Legal Analysis The Veteran contends that service connection is warranted for PTSD and Depressive Disorder. As mentioned above, service connection for PTSD requires an in-service stressor, a medical diagnosis of PTSD, and a nexus between the two. In this case, as it relates to an in-service stressor, the Veteran reported in his hearing that while in Vietnam he feared for his life because he worked on sensors that were electronic motion devices containing C4. Additionally, in the Veteran's March 2014 VA examination, the Veteran reported being under attack, and running around afraid because he and the others did not have rifles. The Board notes that the RO conceded the Veteran's stressor in his March 2014 VA examination, due to the Veteran's Vietnam service. Therefore, the Board finds that the Veteran's in-service stressor is established. In regards to a diagnosis of PTSD, the evidence shows that the Veteran has diagnoses of both PTSD and Major Depressive Disorder; however, after reviewing the evidence of record, the Board finds that neither disorder is causally related to the Veteran's military service, thus, warranting service connection. A discussion of the relevant evidence is detailed below. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its' reasons for rejecting evidence favorable to the claimant). In response to the Veteran's PTSD claim, the Veteran received three VA examinations. In his March 2012 VA examination, the examiner diagnosed the Veteran with Depressive Disorder NOS. The Veteran reported PTSD symptoms of chronic sleep impairment and depressed mood. After a review of the Veteran's file and an examination of the Veteran, the examiner noted inconsistent reports of symptoms in that the Veteran denied all four PTSD screening questions as opposed to most recently endorsing all four PTSD screening questions. The examiner further noted that although the Veteran has received treatment since 2004, there has never been a diagnosis of PTSD, but rather, the Veteran has received diagnoses of Depressive Disorder NOS / Depression. Additionally, the examiner reported that the Veteran's report of symptoms do not cause significant distress and impairment in his functioning as would be expected if he had a diagnosis of PTSD. Ultimately, the examiner opined that the Veterans symptoms are best represented by a diagnosis of Depressive Disorder NOS; therefore, it is less as likely as not related to his military or combat experiences. Alternatively, the Veteran was diagnosed with PTSD at the Jefferson County Vet Center. A summary letter dated June 2012 from a Vet Center physician indicated that the Veteran reported having difficulty with anger, nightmares, insomnia, and intrusive thoughts related to his military experience. The examiner further noted that the Veteran scored 129 for PTSD under the Mississippi Scale for Combat Veterans, and that the cut-off score is 107. Contrary to the Vet Center diagnosis, the Veteran was subsequently diagnosed with Depression in a March 2014 VA examination. In said examination, the Veteran reported having bad dreams of someone chasing him and that he goes to the Vet Center weekly where he talks about his time in the military. The Veteran further reported having an angry outburst when his son was fifteen, lack of concentration, sleep difficulties, and thoughts of wanting to hurt himself, with the last time being one month ago. The examiner noted that the Veteran had PTSD symptoms of depressed mood, chronic sleep impairment, and suicidal ideation; however, the examiner diagnosed the Veteran with Major Depressive Disorder, recurrent moderate. The examiner also noted that a PHQ-9 screening found the Veteran positive for severe depression. The examiner opined that the Veteran's depression is not caused by or a result of his military service or stressors as the Veteran reported a long history of relationship discord with his family members and co-workers, which may be indicative of personality factors which negatively impact his social and relationship functioning. Likewise, the examiner in the Veteran's January 2017 did not find a diagnosis of PTSD, but rather, Major Depression Disorder. The examiner noted that the Veteran's reported PTSD symptoms were not of the frequency or intensity required for a PTSD diagnosis and that the Veteran did not meet many of the criteria necessary for a diagnosis. The examiner determined that the Veteran's Major Depressive Disorder is less likely than not a result of the Veteran's military service because the Veteran's reported difficulties are multi-factorial in nature. The examiner explained that a review of the Veteran's record revealed that once the Veteran began receiving treatment for his depressive symptoms, the focus of his concerns were managing his mood in his marriage, resentment and anger about the military in general, his volunteer work in schools and prisons, and generally feeling "stuck" and "going in circles." Therefore, the examiner concluded the onset and course of the Veteran's concerns are not suggestive of a nexus to military service. Considering the evidence above and the remaining evidence of record, the Board finds that the Veteran does not have an acquired psychiatric disability causally related to his military service. The Board recognizes that the Veteran has received mental health treatment from the Vet Center and the Beaumont OPC; however, the mental health diagnosis has primarily been for Depressive Disorder. For example, in a May 2012 Mental Health Physician Assistant Note, the examiner diagnosed the Veteran with Depression NOS, and noted some symptoms of PTSD. Likewise, the Veteran received the same diagnosis in May 2012 and August 2012, respectively. Additionally, from September 2012 to July 2013, the evidence shows that the Veteran received a diagnosis of Depression, and no PTSD symptoms. However, in February 2014, the Veteran tested negative for depression, but positive for PTSD. The Board notes that, coincidentally, the positive screen for PTSD was one month prior to the Veteran's March 2014 VA examination; however, as mentioned above, the VA examiner ultimately diagnosed the Veteran with Depression. See Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration the veteran's statements, it may consider whether self-interest may be a factor in making such statements). Moreover, a subsequent visit at the Beaumont OPC in June 2014 continued to diagnose the Veteran with Depression. The Board also recognizes that in the Veteran's March 2014 VA examination, the Veteran reported having thoughts of wanting to hurt himself; however, he attributed this isolated episode of suicidal ideation to being frustrated with "having feelings...jumpiness," as opposed to his military experience. Similarly, the Veteran further reported that he wanted to shoot himself a long time ago, but attributed this to being "deeply frustrated" after hurting his back and could not do anything for himself. While the Vet Center diagnosed the Veteran with PTSD, the Board notes that there is no indication that the Veteran's full medical history was reviewed prior to the physician rendering an opinion. Additionally, as pointed out by the January 2017 VA examiner, the Vet Center did not document full PTSD criteria; therefore, "it is unclear what rationale the treating provider had for rendering the PTSD diagnosis, what other diagnoses were considered, and whether any of the Veteran's prior records had been considered." Therefore, the Board finds the VA examinations to be the most probative evidence of record for adjudication of the Veteran's claim. The examinations are credible, persuasive, and consistent with the evidence of record. Moreover, the examiners indicated a review of the Veteran's full claim file and considered pertinent treating physicians notes and past clinical diagnoses of the Veteran, including the Vet Center's PTSD diagnosis, prior to rendering their medical opinion. As a result, the Board finds that the preponderance of evidence is against the Veteran's claim for service connection as there is no probative evidence of record that relates the Veteran's diagnosed PTSD and Depressive disorders to his active duty service. Therefore, as the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply, and the claim for service connection for an acquired psychiatric disorder, to include PTSD and Depression is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), and to include depression is denied ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs