Citation Nr: 1806729	
Decision Date: 02/01/18    Archive Date: 02/14/18

DOCKET NO.  05-04 811	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for and a psychiatric disorder, claimed as posttraumatic stress disorder (PTSD).

2. Entitlement to service connection for PTSD.

3. Entitlement to service connection for an acquired psychiatric disorder, other than anxiety with depressive disorder and PTSD.


REPRESENTATION

Appellant represented by:	Robert V. Chisolm, Attorney


ATTORNEY FOR THE BOARD

T. Adams, Counsel
INTRODUCTION

The Veteran served on active duty from November 1985 to June 1992.

These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

In his May 2011 substantive appeal, the Veteran selected to attend a Travel Board hearing.  In March 2013, this matter was remanded for a Board hearing to be scheduled.  However, in April 2017, he withdrew his request in writing and requested that the Board issue a decision in the appeal without further delay.  Accordingly, the Veteran's hearing request is deemed withdrawn.  38 C.F.R. § 20.704 (e).

In the most recent July 2014 remand, the Board denied the claim of entitlement to higher ratings for Bennett's fracture of the right thumb and remanded the claim of entitlement to service connection for a left ring finger disability.  Following the Board's remand, the Veteran's claims for service connection for a left 4th digit proximal interphalangeal joint was granted in an April 2016 rating decision, and is no longer before the Board.

The Board also notes that the record reflects that in January 2017, the Veteran perfected an appeal of a July 2013 rating decision which denied entitlement to increased ratings for spinal stenosis of the lumbar region and degenerative disc disease and denied an extension of a temporary total evaluation under Paragraph 30, to include entitlement to a total disability rating based on individual unemployability (TDIU).  Although these issues have been properly appealed, they have not been certified for appellate review.  Consequently, the Board will not accept jurisdiction over those issues at this time. They will be the subject of a subsequent Board decision, if otherwise in order.

The Board notes that the additional evidence was added to the record by the RO since a June 2012 Supplemental Statement of the Case.  The Veteran, through his attorney, waived initial RO consideration of additional evidence in April 2017.  See 38 C.F.R. § 20.1304 (c).  

The issue of entitlement to service connection for an acquired psychiatric disorder, other than anxiety with depressive disorder and PTSD, is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1. In an unappealed decision, dated in April 2006, the RO denied a claim of service connection for PTSD on the basis that there was no medical evidence showing that PTSD had been clinically diagnosed.
 
2. The evidence received since the RO's April 2006 decision, which was not previously of record, and which is not cumulative of other evidence of record, raises a reasonable possibility of substantiating the claim.

3. The preponderance of the evidence weighs against a finding that the Veteran has a diagnosis of PTSD at this time.


CONCLUSIONS OF LAW

1. The April 2006 rating decision that denied service connection for PTSD, is final.  38 U.S.C. § 7105 (2012), 38 C.F.R. §§ 3.160 (d), 20.201, 20.302, 20.1103 (2017).

2. New and material evidence has been received since the RO's April 2006 decision; the claim for service connection for PTSD, is reopened.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017).

3. Criteria for service connection for PTSD have not been met.  38 U.S.C. §§ 1110, 1111, 1131, 1132, 5103(a), 5103A (2012); 38 C.F.R. §§ 3.159, 3.303, 3.304(f) (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

In this case, the Board reopened the claim of entitlement to service connection for PTSD which constitutes a complete grant of the benefits sought on appeal with regard to this claim.  Any error that was committed with respect to either the duty to notify or the duty to assist was harmless and need not be further considered with regard to this specific issue.

With regard to the claim of entitlement to service connection for PTSD, there is no indication in this record of a failure to notify.  See Scott v. McDonald, 789 F.3rd 1375 (Fed. Cir. 2015).

Pursuant to the duty to assist, VA must obtain "records of relevant medical treatment or examination" at VA facilities.  38 U.S.C. § 5103A (c)(2).  All records pertaining to the conditions at issue are presumptively relevant.  See Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010).  In addition, where the Veteran "sufficiently identifies" other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information.  Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (citing 38 C.F.R. § 3.159 (c)(3)).

In this case, the Veteran has indicated no such records and all pertinent records have been obtained.

Next, a relevant VA examination was obtained in April 2015.  The Board finds that the examination shows that the examiner considered the evidence of record and the reported history of the Veteran, conducted a thorough examination, and noted all findings necessary for proper adjudication of the matter.  Hence, the Board finds that the VA examination in this case is adequate.  See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes).

Under these circumstances, the Board finds that VA has complied with all duties to notify and assist required under 38 U.S.C. § 5103A  and 38 C.F.R. § 3.159. 

I. New and Material Evidence

The Veteran most recently filed a request to reopen his claim for entitlement to service connection for PTSD in July 2009.  At the time of his last final denial, evidence of record included service treatment records, service personnel records, and VA treatment records.

Since the last final denial, evidence added to the record includes additional VA treatment records, VA examination reports, and a PTSD stressor statement.

Based on a review of this new evidence, and the low standard for reopening claims, the Board finds that the new and material criteria under 38 C.F.R. § 3.156 (a) have been satisfied, and the claim for service connection for PTSD is reopened.

II. Service Connection

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a).  Service connection requires competent evidence showing: (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.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). 

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.  38 C.F.R. § 3.304(f) (2017); Cohen v. Brown, 10 Vet. App. 128 (1997).  Diagnoses of mental disorders must comply with the criteria set forth in the Diagnostic and Statistical Manual of Mental Disorders, 4th edition, of the American Psychiatric Association  (DSM- IV). Id., see also 38 C.F.R. § 4.125(a) (2017).  In August 2014, VA amended 4.125 by changing DSM-IV to DSM-5. See Fed. Reg. 45093 (Aug. 4, 2014).

Finally, 38 U.S.C. § 1154 (a) requires that VA give 'due consideration' to 'all pertinent medical and lay evidence' in evaluating a claim for disability or death benefits.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  Specifically, '[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.'  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006).

The Veteran contends that he has PTSD that is related to his service.  Specifically, in a September 2009 Statement in Support of Claim for Service Connection for PTSD, the Veteran stated that during patrol/guard duty he found dead bodies and body parts.  He also said that barracks were burned down with people asleep inside and that he had an enemy hold a "gun" to his head.

As a preliminary matter, to the extent that the Veteran has claimed that he participated in combat, an April 2006 rating decision specifically noted that the Veteran's personnel records did not show the receipt of a combat-related medal or citation.

The Veteran's STRs are void of findings, complaints, symptoms, or any diagnosis of PTSD.

Post-service, VA treatment records include a March 2010 psychological assessment which indicates that the Veteran presented with a history of combat in the Panama Canal.  After a thorough mental status examination, his diagnoses included polysubstance dependence, schizoaffective disorder, and PTSD (by history).

On April 2015 VA mental disorders Disability Benefits Questionnaire examination, upon review of the claims file and a thorough examination of the Veteran, the examiner stated that the Veteran did not have a PTSD diagnosis that conformed to DSM-5 or DSM-IV criteria.  Instead, the examiner diagnosed other specified anxiety disorder, other specified depressive disorder, and polysubstance dependence. 

With regard to the matter of whether the Veteran has a current diagnosis of PTSD, the Board finds that the evidence is insufficient to show that the Veteran currently has PTSD.  In fact, there is highly significant medical evidence against such a finding, as noted above.  See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (under 38 U.S.C.A. § 1131, an appellant must submit proof of a presently existing disability resulting from service in order to merit an award of compensation).  The April 2015 VA PTSD examiner stated that the Veteran does not have PTSD providing evidence against this claim.  This finding is considered highly probative, as it is shown to have been based on a review of the Veteran's claims file, including evidence in favor of the Veteran's claim, and/or as it is accompanied by a sufficient explanation and findings.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).  Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for PTSD, and that the claim must be denied. 

In reaching this decision, despite the examiner's finding that the Veteran had no diagnosis of PTSD, the Board has considered several findings of PTSD symptoms in the VA treatment records.  However, none of these reports are shown to have been based on a review of the Veteran's case as a whole-there is no indication that the medical providers reviewed any other relevant evidence in the claims file in rendering their diagnoses.  Prejean, supra.  It is true that a review of the claims failure or lack thereof does not control the probative value of a medical opinion.  See Nieves-Rodriguez v. Peake, 22 Vet. App. at 304.  However, these reports warrant less probative weight as none of them, unlike the April 2015 VA examination report, for example, contain an analysis as to whether or not all of the criteria for PTSD were met.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Quick Reference to the Diagnostic Criteria from DSM-IV at 209-11 (American Psychiatric Association 1994); see also Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (recognizing the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence").  

Simply stated, the best medical evidence in this case provides highly probative evidence against the Veteran's claim for service connection for PTSD.  

Accordingly, the claim must be denied.

The Board has taken the Veteran's contentions that he has PTSD related to his service with great care and detail.  The Board has also closely reviewed the medical and lay evidence in the Veteran's claims file and finds no evidence that may serve as a medical nexus between the Veteran's service and his claimed disability.  Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435  (2011), the specific issue in this case, the existence of a current DSM-IV or DSM-5 diagnosis of PTSD, falls outside the realm of common knowledge of a lay person.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer).

In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claim for service connection for PTSD, and there is no doubt to be otherwise resolved.  As such, this claim is denied.  The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102 (2017).


ORDER

New and material evidence to reopen a claim of entitlement to service connection for PTSD has been received, to this extent, the appeal is granted.

Service connection for PTSD is denied.


REMAND

With regard to the claim of service connection for a psychiatric disorder, other than anxiety with depressive disorder and PTSD, the competent evidence of record indicates that the Veteran has been diagnosed with additional psychiatric disabilities during the rating period on appeal, to include schizoaffective disorder (as diagnosed in a March 2010 VA psychological assessment).  Accordingly, a new VA psychiatric examination is now required that more completely addresses the Veteran's full psychiatric history and the etiology of any diagnosed conditions.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (stating that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate).

Moreover, in a September 2015 decision, the RO granted service for anxiety with depressive disorder, secondary to a spinal stenosis of the lumbar region.  Accordingly, on remand a medical opinion should be obtained which addresses whether any additionally diagnosed psychiatric diagnoses are related to the Veteran's service-connected anxiety with depressive disorder.  Id. 

While on Remand any additional VA treatment records should be associated with the claims file.

Accordingly, the case is REMANDED for the following actions:

1. Obtain all outstanding VA medical records related to the Veteran's psychiatric disorder, including those from the Lake Baldwin CBOC, dated from April 2016 to the present.  All records and/or responses received should be associated with the claims file (the Veteran himself can also submit all record he believes to be pertinent).

2. After the foregoing has been completed, schedule the Veteran for a VA examination which addresses the nature and etiology of any psychiatric disorders, other than anxiety disorder with depression and PTSD, diagnosed during the course of the appeal.  The claims file must be provided to the examiner for review.  All indicated tests and studies should be performed.  The claims folder should be provided to the examiner for review of pertinent documents.  The examination report should reflect that such a review was conducted.

Identify and/or diagnose all psychiatric disorders, other than anxiety disorder with depression and PTSD, during the course of the appeal. 

a) Is it at least as likely as not (50 percent or more probability) that any psychiatric disorder diagnosed during the course of the appeal, other than anxiety disorder with depression and PTSD, had its onset in or is etiologically-related to the Veteran's active duty service?

b) If the answer to part (a) above is "no," is it at least as likely as not (50 percent probability or more) that any psychiatric disorder, other than anxiety disorder with depression and PTSD, diagnosed during the course of the appeal, is (a) proximately due to or the result of the Veteran's service-connected disabilities, to specifically include service-connected anxiety disorder with depression or (b) aggravated or permanently worsened by his service-connected disabilities, to specifically include anxiety disorder with depression.  If it is determined that any additional psychiatric disorder(s) is related to his service-connected disabilities, to the extent possible, the examiner should indicate the approximate degree of disability or baseline before the onset of aggravation.

The term "at least as likely as not" does not mean within the realm of medical possibility, but rather the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it.

Note: The term "aggravated" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability.

Note: The requested opinions on aggravation should be premised on the baseline level of severity of the disorder before the onset of aggravation, or by the earliest medical evidence created at any time between the onset of aggravation and the examiner's current findings.
 If an opinion cannot be rendered without resorting to speculation, the physician should explain why it would be speculative to respond.

3. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated.
If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative, and after the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review.

The appellant has the right to submit additional evidence and argument on the matters 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 that are 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).



______________________________________________
KELLI A. KORDICH
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs