Citation Nr: 1806833 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 14-15 451 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), depressive disorder, and psychotic disorder not otherwise specified (NOS). REPRESENTATION Veteran represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD J. Barone, Counsel INTRODUCTION The Veteran had active service from February 1989 to July 1989, from March 1990 to September 1990, and from December 1990 to June 1991. This matter comes before the Board of Veterans' Appeals (Board) from a July 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In his April 2014 substantive appeal, the Veteran requested a hearing before the Board; however, in September 2014, he indicated that he no longer desired a hearing and requested that his appeal be forwarded to the Board for consideration. The Board notes that the United States Court of Appeals for Veterans Claims (Court) has determined that a PTSD claim cannot be limited to a PTSD diagnosis alone, but "must rather be considered a claim for any mental disorder that may reasonably be encompassed by several factors including: the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim." See Clemons v. Shinseki, 23 Vet. App. 1 (2009). As there are additional diagnoses contained in the record, the Board has recharacterized the issue as noted on the first page of this decision and will analyze the Veteran's current claim under this framework. FINDINGS OF FACT 1. The Veteran does not have PTSD. 2. An acquired psychiatric disorder other than PTSD was not manifest in service and is unrelated to service; psychosis was not diagnosed within one year following separation from service. CONCLUSIONS OF LAW 1. PTSD was not incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1154(b) (West 2012); 38 C.F.R. §§ 3.303, 3.304 (2017). 2. An acquired psychiatric disorder other than PTSD was not incurred in or aggravated by active service, and psychosis may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5107 (West 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.655 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2015). A letter dated in October 2008 discussed the evidence necessary to support a claim of entitlement to service connection. The Veteran was also informed of the allocation of responsibilities between himself and VA and of the manner in which VA determines disability ratings and effective dates. The Board finds that the content of the notice described above fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The Veteran has been provided with every opportunity to submit evidence and argument in support of his claim. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim. With respect to VA's duty to assist, service and VA treatment records have been associated with the claims file. The Board acknowledges that the Veteran has not been afforded a VA medical examination regarding the question of whether the diagnosed psychiatric disorders other than PTSD are related to service. However, the Board finds that a VA examination is not necessary in order to render a decision on this claim. There are two pivotal cases which address the need for a VA examination, Duenas v. Principi, 18 Vet. App. 512 (2004) and McLendon v. Nicholson, 20 Vet App. 79 (2006). In McLendon, the U.S. Court of Appeals for Veterans Claims (Court) held that in disability compensation claims, the Secretary must provide a VA medical examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. Id. at 81. In Duenas, the Court held that a VA examination is necessary when the record: (1) contains competent evidence that the Veteran has persistent or recurrent symptoms of the claimed disability and (2) indicate that those symptoms may be associated with his active military service. The Board finds that there is no competent evidence linking the diagnosed psychiatric disorders other than PTSD to service or any incident therein. Accordingly, an examination regarding whether an acquired psychiatric disorder other than PTSD is related to service is not warranted. The Board is satisfied that VA has complied with the duty to assist requirements of the VCAA and the implementing regulations. For the foregoing reasons, it is not prejudicial to the appellant for the Board to proceed to a final decision in this appeal. Analysis The Veteran seeks service connection for PTSD. He maintains that events during service are the cause of his claimed psychiatric disorder. These include an incident when a female soldier stepped on a land mine and was blown up, seeing damaged vehicles, and generally hearing tanks, rockets, and small arms fire. Entitlement to VA compensation may be granted for disability resulting from disease or injury incurred in service. 38 U.S.C.A. §§ 1110 (wartime service), 1131 (peacetime service); 38 C.F.R. § 3.303. 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"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service incurrence or aggravation of psychosis may be presumed to have been incurred or aggravated if it is manifested to a compensable degree within a year of the Veteran's discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§3.307, 3.309. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. A decision of the U. S. Court of Appeals for the Federal Circuit (Federal Circuit), however, clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The requirements for establishing service connection for PTSD are more specific than those for establishing service connection for other psychiatric disabilities. To establish service connection for PTSD, the evidence must satisfy three basic elements: 1) medical evidence diagnosing PTSD; 2) a link, established by medical evidence, between current symptoms of PTSD and an in-service stressor; and 3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). If the evidence establishes that the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d), (f). Additionally, 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 PTSD, 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. For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a Veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the Veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. 38 C.F.R. § 3.304 (f)(3); see 75 Fed. Reg. 39843 (July 13, 2010). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit, citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b). Service treatment records are negative for any diagnosis, complaint, or abnormal finding suggestive of an acquired psychiatric disorder. Periodic examination in December 1990 revealed no psychiatric abnormalities. At that time, the Veteran denied frequent trouble sleeping, depression or excessive worry, loss of memory, and nervous trouble. On examination at release from active duty in April 1991, the Veteran was psychiatrically normal. He denied frequent trouble sleeping, depression or excessive worry, loss of memory, and nervous trouble. An associated Southwest Asia Demobilization medical evaluation indicates that the Veteran denied nightmares or trouble sleeping, and recurring thoughts about his experiences during Desert Shield/Desert Storm. On enlistment examination in June 1995, the Veteran was noted to be psychiatrically normal. He denied frequent trouble sleeping, depression or excessive worry, loss of memory, and nervous trouble. The examiner indicated that the Veteran was qualified for enlistment. An October 2008 intake report from a Vet Center indicates that the Veteran was a motor transportation operator in Saudi Arabia. He reported that he witnessed a person blown up, and that he saw charred vehicles and possessions along a road, but no people with those vehicles and possessions. He endorsed repeated disturbing memories, thoughts, and images; repeated disturbing dreams; reliving of the disturbing experiences; feeling very upset when reminded of a stressful military experience; avoidance; physical reactions to reminders; emotional numbness and distance; sense of foreshortened future; sleep disturbance, irritability and anger; difficulty concentrating, and feeling jumpy or easily startled. On VA examination in February 2009, the Veteran's history was reviewed. He denied having experienced combat, noting that he heard arms fire during his time in Southwest Asia. He endorsed feelings of depression and sadness as being the worst of his psychiatric symptoms. He stated that these feelings were related to his inability to obtain or keep a job, and his inability to take care of himself financially. He next described fatigue and aches that began in 1993. His third complaint related to social avoidance since adolescence. He noted that this had worsened since his deployment in 1990 and 1991. The examiner noted that these three complaints (depression, fatigue, and avoidance) were made spontaneously without any cues. He indicated that on direct questioning, the Veteran denied current nightmares, stating that he had experienced only one nightmare in his life, and that it concerned being in a tent in Saudi Arabia, seeing a green mist, and running to find a friend, who he discovered dead. He stated that other than this dream of an event that never occurred, he had not had unpleasant nightmares or dreams since. He denied flashbacks, noting that he had seen a movie recently and that it made him uncomfortable because it included scenes of the desert, but that he had no flashbacks. He endorsed hypervigilance and excessive startle reaction, as well as social avoidance. He noted that he avoided going out, and that he spent most of his time at home drinking. He reported anger control problems since his teenage years, and that this increased after his deployment. He described no sleep problems. He indicated his belief that he had always had difficulty with concentration. He noted that he drank a 6-pack of beer per day, and that he enjoyed drinking with his girlfriend. Mental status examination revealed no formal thought disorder. Based on this summary of symptoms, the examiner concluded that the Veteran did not meet criterion A or criterion B for a diagnosis of PTSD. He pointed out that the Veteran reported that he knew that his truck company followed the 1st Infantry, and that he heard gunfire, but that he did not describe any specific event that he experienced in a combat situation or otherwise that he would call a stressor. He noted that the Veteran had some criteria C and D symptomatology of avoidance and hypervigilance, but that these were only symptoms and did not meet the full criteria for a diagnosis of PTSD. The diagnoses were depressive disorder NOS and alcohol abuse. The examiner specified that the Veteran had PTSD symptoms only, and that a formal diagnosis of PTSD could not be made, as the Veteran did not meet criteria A or B. Subsequently in February 2009, the VA examiner reviewed the claims file and provided an addendum. He noted that on separation examination in April 1991, and again on examination in 1995, there were no neuropsychiatric symptoms noted. He revisited his examination report, and reiterated the diagnoses. A March 2010 assessment report by a Vet Center social worker indicates the Veteran's report of witnessing a soldier being blown up, and of hearing weapons fire. The social worker noted that it took about a year to complete the assessment due to the Veteran's erratic attendance. She noted that the Veteran's responses to the Vet Center PTSD checklist, screening questionnaire, and Vet Center symptom checklist were consistent with the diagnosis of PTSD. She provided diagnoses of PTSD, depressive disorder, and alcohol abuse. On VA examination in February 2014, the diagnosis was alcohol use disorder, mild. The examiner indicated that the Veteran did not have symptoms that met the criteria for a diagnosis of PTSD. The Veteran described an incident in Saudi Arabia when someone stepped on a landmine. He denied other traumatic events. He related that he had been instructed by the Army Reserves to obtain his GED, but that he failed to do so and was separated on that basis. The examiner noted that a Vet Center provider had diagnosed PTSD, depressive disorder NOS, and alcohol abuse. Regarding current symptoms, the Veteran reported agitation and avoidance of groups of people. He stated that going outside and new things were frustrating due to anxiety. He indicated that he was paranoid of people because of the idea that people were watching him. He denied other psychiatric symptoms, but when promoted for other symptoms, he reported sleep disturbance. He was unable to describe the content of dreams, but reported that he sometimes stopped breathing in the middle of the night. He endorsed flashbacks, but was unable to describe the nature or content of them. He reported panic-like symptoms associated with his examination appointment, but was unable to identify other panic symptoms or occurrences. He denied emotional numbness and detachment. He indicated that he had no interest in most activities because "I really don't care." He denied symptoms associated with alterations in mood or cognition. He reported hypervigilance and indicated that his therapist "told me that I'm constantly scanning everything and looking at everybody." He reported his dislike for air horns, because they reminded him of air raids in Saudi Arabia. He reported startled response to loud noise and loud sirens on television. He stated that he had been told that he had anger problems and admitted to throwing things and yelling. He acknowledged frustration with the examination because there were a lot of questions. He complained of poor concentration and short-term memory for unknown reasons. He indicated that he has been told that he had obsessive-compulsive behaviors. He endorsed a depressed mood for reasons he could not describe. He reported that he started drinking at age 15, and that at the height of his drinking 15 years previously, he drank to pass out. The examiner noted that the Veteran's reported stressor of seeing a soldier killed by a land mine met criterion A (i.e., it was adequate to support the diagnosis of PTSD). He stated that his stressor was not related to the Veteran's fear of hostile military of terrorist activity. The examiner also indicated that pursuant to criterion C, the Veteran experienced avoidance of or efforts to avoid external reminders; that under criterion D, he experienced negative alterations in cognitions and mood; and that under criterion E, he experienced alterations in arousal and reactivity based on hypervigilance, exaggerated startle response, problems with concentration, and sleep disturbance. He noted that the Veteran participated in an initial PTSD examination in 2009, but that the examiner did not find evidence of a traumatic event and re-experiencing symptoms. He indicated that since the 2009 evaluation, the Veteran's Vet Center therapist documented that Veteran witnessed a fellow soldier step on a land mine as she exited her vehicle. He noted that the Veteran was assigned diagnoses of PTSD, depressive disorder NOS, and alcohol abuse. He noted that although the Veteran also described the traumatic incident during the current examination, he did not demonstrate traumatic reactions to the reported event. He noted that the Veteran's overall clinical presentation was not suggestive of trauma or PTSD. He pointed out that the Veteran denied or was unable to fully explain intrusion symptoms associated with the identified trauma event, and that although he endorsed symptoms associated with alterations in arousal/reactivity, he did not endorse sufficient symptoms of alterations in mood/cognitions. He concluded that, for those reasons, the Veteran did not meet criteria for PTSD under DSM-5 or DSM-IV. He pointed out that the Veteran demonstrated the tendency to over-endorse when asked for specific symptoms, but was not able to describe them without cues or specific probing. He indicated that, for this reason, he attributed much of the Veteran's depressive and anxiety symptoms to his alcohol use disorder. He indicated that, although the Veteran informed of a recent decrease in use, he had been consuming regularly for 15 years. He also suggested that the Veteran's low intellectual functioning contributed to his frustration, irritability, and other related symptoms. PTSD After careful consideration of the evidence, the Board finds that service connection for PTSD is not warranted. In this regard, the Board notes that a key element to establishing service connection is to show that Veteran has the claimed disability that meets the diagnostic criteria in accordance with the controlling VA regulation. This element may only be shown through evidence of a diagnosis of PTSD. The Board acknowledges that a Vet Center provider has assigned diagnoses including PTSD. However, while she noted that the Veteran's reported symptoms were consistent with a diagnosis of PTSD, she did not provide a specific discussion of how the Veteran's symptoms and presentation met the criteria for the diagnosis. On the other hand, the examiners who performed the 2009 and 2014 VA examinations conducted detailed clinical interviews and reviewed the record in reaching their conclusion that a diagnosis of PTSD was not appropriate. These examiners carefully explained why the Veteran's reported symptoms and clinical presentation did not comport with a diagnosis of PTSD. Moreover, the 2014 examiner acknowledged the stressor related to a fellow soldier stepping on a landmine, but stated that in describing this incident, the Veteran did not demonstrate traumatic reactions to it. In assigning high probative value to the VA examiners' opinions, the Board notes that each had the claims file for review, specifically discussed evidence contained in the claims file, obtained a history from the Veteran, conducted a complete examination which included a focused clinical interview, and offered detailed rationale with discussion of the Veteran's history and the findings of the examination in application to their conclusions. There is no indication that these VA examiners were not fully aware of the Veteran's history or that they misstated any relevant fact. The Board thus finds the VA examiners' opinions to be of greater probative value than the Veteran's unsupported statements. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (noting that factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion.); Neives-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). To the extent that the Veteran claims that he has PTSD, the Board observes that while he is competent to describe symptoms and when they occurred, he is not competent as a lay person to ascribe a diagnosis to those symptoms. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). Thus, in determining whether he has PTSD, the Board places far more probative weight on the clinical findings of the VA examiners who conducted full and comprehensive assessments prior to rendering their conclusions. Under these circumstances, the Board must conclude that the Veteran has not met the regulatory requirements of entitlement to service connection for PTSD. As such, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for PTSD and that the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Acquired Psychiatric Disorder other than PTSD Upon careful review of the record, the Board concludes that service connection is not warranted for an acquired psychiatric disorder other than PTSD. While there are post service diagnoses of depressive disorder and psychotic disorder NOS, the most competent and probative evidence of record does not etiologically link any such disorder to service or any incident therein. Rather, the record demonstrates that a substantial period has elapsed between service and these diagnoses. As noted, relevant examinations in 1991 and 1995 were negative, and an initial diagnosis of a psychiatric disorder dates to 2009, when the Veteran presented for an initial VA examination. Aside from the Veteran's own contentions, there is no evidence of a link between these diagnoses and service. Thus, continuity is not established. To the extent that the Veteran asserts that he has an acquired psychiatric disorder that is related to service, the Board observes that he may attest to factual matters of which he has first-hand knowledge, such as subjective complaints, and his assertions in that regard are entitled to some probative weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). He is competent to report incidents and symptoms in service and symptoms since then. He is not, however, competent to render an opinion as to the cause or etiology of any current diagnosis because he does not have the requisite medical knowledge or training, and because this matter is beyond the ability of a lay person to observe. See Rucker v. Brown, 10 Vet. App. 67, 71 (1997); see also See Jandreau. The grant of service connection requires competent evidence to establish a diagnosis and, as in this case, relate the diagnosis to the Veteran's service. The preponderance of the evidence is against finding that any diagnosis is related to any injury or disease in service. Accordingly, the doctrine of reasonable doubt is not applicable in the instant appeal. Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990); 38 C.F.R. § 3.102 (2016). ORDER Entitlement to service connection for an acquired psychiatric disorder is denied. ____________________________________________ DONNIE R. HACHEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs