Citation Nr: 1805063	
Decision Date: 01/25/18    Archive Date: 02/05/18

DOCKET NO. 14-00 811	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Louisville, Kentucky


THE ISSUES

1. Entitlement to service connection for posttraumatic stress disorder (PTSD).

2. Entitlement to service connection for pineal cysts.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

R. Husain, Associate Counsel



INTRODUCTION

The Veteran had active service from June 1982 to September 1989.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. Jurisdiction has since been transferred to the RO in Louisville, Kentucky.

In the Veteran's VA Form 9 appeal to the Board, he limited his appeal to the two issues identified on the title page.

In August 2015, the Board remanded the Veteran's issues for a Board hearing. The Veteran later withdrew his request for a hearing. Under the circumstances, the Board finds that there has been substantial compliance with its remand instructions. See Dyment v. West, 13 Vet. App. 141 (1999); Stegall v. West, 11 Vet. App. 268 (1998). The case has since returned to the Board for further consideration.

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).

The issue of service connection for pineal cysts is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

The Veteran does not have a current diagnosis of PTSD. An in-service stressor sufficient to cause PTSD has not been verified.



CONCLUSION OF LAW

The criteria for entitlement to service connection for PTSD have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duty to Notify and Assist

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 duty to assist argument).

The Board has thoroughly reviewed all the evidence in the Veteran's VA file. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for the Board's decision. 38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet. App. 517, 527 (1995). Although the entire record must be reviewed by the Board, it is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, infra.


III. PTSD

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017). "To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).

Specifically, entitlement to service connection for PTSD requires the presence of three particular elements: (1) a current medical diagnosis of PTSD; (2) medical evidence of a causal nexus between current symptomatology and a claimed in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor actually occurred. 38 C.F.R. § 3.304(f) (2017).

Regarding the in-service stressor element of a claim of service connection for PTSD, the Court of Appeals for Veterans Claims (Court) has held that credible supporting evidence means that the Veteran's testimony cannot, by itself, as a matter of law, establish the occurrence of a non-combat stressor; nor can credible supporting evidence of the actual occurrence of an in-service stressor consist solely of after-the-fact medical nexus evidence. See 38 C.F.R. § 3.304(f)(3); see also Moreau v. Brown, 9 Vet. App. 389, 395-96 (1996); Patton v. West, 12 Vet. App. 272, 277 (1999). Instead, the record must contain service records or other independent credible evidence corroborating the Veteran's testimony as to the alleged stressor. See Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). Those service records which are available must support and not contradict the Veteran's lay testimony concerning stressors. Doran v. Brown, 6 Vet. App. 283, 289 (1994).

The diagnosis of PTSD must comply with the criteria set forth in the American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders, 5th edition, of the American Psychiatric Association (DSM-5). See 38 C.F.R. §§ 4.125(a), 4.130 (2017). However, the record reflects that the Veteran's psychiatric health has been analyzed under the American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders, 4th edition, of the American Psychiatric Association (DSM-IV) criteria because it was analyzed prior to the release of the DSM-5. See Cohen v. Brown, 10 Vet. App. 128, 140 (1997) (holding that VA may presume that a diagnosis made by a mental health care professional was made in accordance with the DSM-IV). Thus, the Board shall consider the Veteran's appeal in light of the DSM-IV.

DSM-IV provides that 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 himself or others, and (2) the person's response involved intense fear, helplessness, or horror.

In substance, under the revised 38 C.F.R. § 3.304(f)(3), service connection can be granted for PTSD if the evidence demonstrates a current diagnosis of PTSD (rendered by an examiner specified by the regulation); an in-service stressor consistent with the places, types, and circumstances of service (satisfactorily established by lay testimony) that has been medically related to the veteran's fear of hostile military or terrorist activity by a VA psychiatrist or psychologist, or one contracted with by VA; and, PTSD symptoms have been medically related to the in-service stressor by a VA psychiatrist or psychologist, or one contracted with by VA.

In this case, the evidence does not support, and the Veteran does not contend, that he engaged in combat, or that he was exposed to hostile military or terrorist activity; therefore, the presumptions afforded to veterans who engaged in combat or allege fear of hostile military or terrorist activity are inapplicable in this case. Thus, any alleged in-service stressors must be independently verified, i.e., corroborated by objective, credible supporting evidence.

The Veteran contends that his in-service stressors occurred when he served as an emergency responder. The Veteran contends that in the summer of 1988 that he observed several individuals who were severely injured by an explosion, and participated in transporting them to a medical facility. The Veteran states that he experienced another in-service stressor when he was working as an ambulance driver, and witnessed two individuals burn to death in a car accident in 1983.

The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the award of service connection for PTSD. The reasons follow.

The Veteran has not been diagnosed with PTSD, and thus the preponderance of the evidence is against a finding of a current disability. The evidence indicates that the Veteran has reported a history of PTSD for his ongoing psychiatric treatment at the St. Louis, Missouri VA Medical Center (VAMC), however during examinations for PTSD, the Veteran has not been found to have a current diagnosis. For example, during a February 14, 2013 psychology consult at the St. Louis VAMC, the examiner noted that the Veteran had PTSD in the section discussing the reason for referral. However, the examiner did not find an Axis I diagnosis of PTSD in an assessment during the consultation. In a May 29, 2013 record from the St. Louis VAMC, the examiner specifically noted that the Veteran did not meet DSM-IV criteria for a diagnosis of PTSD.

Although the Veteran references two incidents that he believes are his PTSD stressors, the Veteran has not assisted VA in providing additional verifiable details. For example, the Veteran has not responded to letters dated September 2008 and June 2009 regarding obtaining information from the Veteran to verify details related to his stressor. Without the Veteran's assistance in corroboration of the Veteran's claims, VA cannot verify the Veteran's stressors.

The Board is aware that the criteria for entitlement to service connection for PTSD do not require that psychiatric symptoms be shown in service; however, the Veteran wrote a statement wherein he claimed that his drinking problems had begun in service after witnessing the two individuals burn to death. The Veteran's service treatment records do not support this assertion. For example, in a mental status consultation from July 1987, while the Veteran was being treated for alcoholism, PTSD was not mentioned or diagnosed. It was noted that the Veteran reported he started drinking at the age of 15, which is prior to the Veteran's period of active duty. The Veteran did not point to something in service that was impacting his drinking versus stating that his drinking problem had continued since he was 15 years old. The failure to report an in-service incident at this time (while reporting other happenings in his life) tends to weigh against the alleged in-service stressor of witnessing two people burn to death. Furthermore, the fact that the Veteran was being seen for a mental status consultation, and this stressor was not complained of or mentioned tends to weigh against an in-service stressor. The Veteran was found to have a normal psychological evaluation in August 1989, which is approximately one month before separation from service.

In sum, the preponderance of the evidence is against a finding that the Veteran has a current diagnosis of PTSD, and service connection for PTSD is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply, and the Veteran's claim is denied. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 54-56.


ORDER

Entitlement to service connection for PTSD is denied.


REMAND

While further delay is regrettable, additional development is warranted before the Veteran's claim may be decided.

On November 17, 2009, the Veteran received a VA examination where the examiner noted that the Veteran was previously diagnosed with a sebaceous cyst, which was later removed. However, the Veteran contends that his sebaceous cyst and his pineal cysts are two separate issues.

On another examination on the same day, the examiner noted that the medical history did not reflect any symptoms related to pineal cysts. During the examination, the Veteran contended that his pineal cysts were related to benzene exposure, contaminated water exposure, and his service at Camp Lejeune. The examiner stated that a pineal cyst could not be related to a sebaceous cyst from a medical viewpoint, but did not offer an opinion as to whether the Veteran currently had pineal cysts, nor did he offer an opinion as their etiology.

However, records from the Social Security Administration from March 12, 2008 demonstrate several findings of symptoms in relation to the Veteran's pineal cysts, and reference diagnostic records that indicate the presence of a pineal cyst. Therefore, the Board finds that a new examination is necessary, to address the previous medical records that reflect symptoms related to a pineal cyst.

In this case, there are conflicting reports as to whether the Veteran has a diagnosis of pineal cysts, the Veteran has reported that he was exposed to chemicals while serving in Camp Lejeune, and the Veteran has not received an adequate examination regarding this disability. The Board finds a remand is warranted so that a medical opinion addressing the diagnosis and etiology of the Veteran's pineal cysts, to include whether they are due to chemical exposure, contaminated water exposure, or service at Camp Lejeune, can be obtained. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.)

1. The AOJ should undertake appropriate development to obtain any outstanding evidence pertinent to the Veteran's claim that the Veteran identifies.

2. Schedule the Veteran for an appropriate VA examination to determine the diagnosis and etiology of his pineal cysts. Any necessary diagnostic tests are left to the discretion of the examiner. The examiner should be aware that the November 2009 VA examiner incorrectly stated that the Veteran had no medical history related to pineal cysts, whereas SSA records mention symptoms and diagnostic tests related to the presence of pineal cysts.

a.) The examiner is asked to note the diagnosis, or lack thereof, of pineal cysts.

b.) The examiner is asked to opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's pineal cysts are related to service, to include in-service chemical exposure, water contamination, or service at Camp Lejeune, which period of service was from June 1982 to September 1989.

The examiner must include rationale for all opinions.

3. Then, the AOJ should readjudicate the Veteran's claim of service connection for pineal cysts. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be provided a supplemental statement of the case and the requisite opportunity to respond before the case is returned to the Board for further appellate action.

The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment. The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court of 

Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012).




______________________________________________
A. P. SIMPSON
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs