Citation Nr: 1807120 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 13-09 530 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), based upon substitution of the appellant as the claimant. REPRESENTATION Appellant represented by: Joseph Moore, Attorney ATTORNEY FOR THE BOARD Brad Farrell, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1961 to September 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. Unfortunately, the Veteran died in May 2014 during the pendency of the appeal. Pursuant to 38 U.S.C. § 5121A, the RO granted the appellant's request to be substituted in the Veteran's appeal and informed her of the decision by a letter dated in October 2015. Accordingly, the appellant has been substituted as the claimant for the purposes of the service connection issue on appeal. On May 8, 2017, the Board denied the appellant's claims for entitlement to service connection for progressive supranuclear palsy and cause of death, and remanded the issue of service connection for PTSD for the purpose of obtaining a VA medical opinion. The next day, VA associated with the claims file a written request dated April 17, 2017 from the appellant's attorney for a 90 day stay of adjudication to allow time for the development of evidence the attorney characterized as being "critical to the fair resolution of this case[.]" An August 2017 motion to vacate the Board's May 2017 decision was denied in a Board ruling dated December 5, 2017. However, neither the attorney's request to vacate the prior Board decision, nor the Board's ruling, impacted the appellant's PTSD claim because the appellant has a right, as a matter of law, to submit additional evidence and argument on any matter remanded by the Board. 38 C.F.R. § 20.1304(a); Kutscherousky v. West, 12 Vet. App. 369 (1999). The appellant had the opportunity to submit additional evidence and argument while this claim was in remand status; the record reflects no additional evidence has been submitted by the appellant or her attorney in the interim. Furthermore, the RO notified the appellant and her attorney by letter dated December 12, 2017, that the remanded issue was being returned to the Board, and the Board notified them by letter dated December 28, 2017, that the Board had received the appeal and they had "90 days from the date of this letter or until the Board issues a decision in your appeal (whichever comes first)" to "submit additional argument or evidence, if you elect to do so." There has been no further response from the appellant or her attorney. Mindful that the appeal has been advanced on the Board's docket, the Board now proceeds with the adjudication of the above-referenced claim. FINDING OF FACT The most probative evidence establishes that the Veteran did not meet the criteria for a valid diagnosis of an acquired psychiatric disorder, to include PTSD. CONCLUSION OF LAW The criteria to establish service connection for an acquired psychiatric disorder, to include PTSD, were not met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.303, 3.304 (2017), 38 C.F.R. § 4.125 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for benefits. Upon receipt of a complete or substantially complete application for benefits, and prior to an initial unfavorable decision, VA is required to notify the claimant and his or her representative, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. Proper notice from VA must inform the claimant of any information and evidence not of record: (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the VCAA notice requirements pertaining to the Veteran's PTSD claim were satisfied by virtue of an April 2011 letter, sent to the Veteran prior to the initial unfavorable decision in November 2011. VA also has a duty to assist a claimant in the development of the claim. This duty includes assisting in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79 (2006). The AOJ obtained the Veteran's service treatment records (STRs) as well as his post-service VA and identified and authorized private treatment records. The record does not otherwise indicate any additional existing evidence that is necessary for a fair adjudication of the claim. Furthermore, upon review, the Board finds that the June 2017 VA medical opinion issued pursuant to the Board's May 2017 remand, substantially complies with the remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). Based on the foregoing, and mindful that the record does not reflect that the appellant or her attorney have submitted additional evidence since the Board's May 2017 remand, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal, and no further development is required to comply with the duty to assist in developing the facts pertinent to the appeal. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In view of the foregoing, the Board will proceed with appellate review. Pertinent Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed aggravation of a disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection for a psychiatric disorder, to include PTSD, requires the following three elements: (1) a current medical diagnosis of a psychiatric disorder, to include PTSD, (2) credible supporting evidence that the claimed in-service stressor(s) actually occurred, and (3) medical evidence of a causal relationship between current symptomatology and the specific claimed in-service stressor(s). See 38 C.F.R. § 3.304(f). As the instant case was certified to the Board prior to August 4, 2014 diagnosis of PTSD must be made in accordance with the criteria of the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM-IV). 38 C.F.R. §4.125 (2013). See 80 Fed. Reg. 14, 308 (March 19, 2015). In adjudicating a claim for service connection for a psychiatric disorder, to include PTSD, the Board is required to evaluate evidence based on places, types, and circumstances of service, as shown by the veteran's military records and all pertinent medical and lay evidence. Hayes v. Brown, 5 Vet. App. 60, 66 (1993); see also 38 U.S.C. § 1154(a); 38 C.F.R. § 3.304(f). The evidence necessary to establish the occurrence of an in-service stressor for PTSD will vary depending on whether or not the veteran "engaged in combat with the enemy." Id. If VA determines that the veteran engaged in combat with the enemy and that the alleged stressor is related to combat, then the veteran's lay testimony or statements are accepted as conclusive evidence of the occurrence of the claimed stressor. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(f)(2). No further development or corroborative evidence is required, provided that the claimed stressor is "consistent with the circumstances, conditions, or hardships of the veteran's service. Id. If, however, VA determines that the veteran did not engage in combat with the enemy or that the alleged stressor is not related to combat, the veteran's lay testimony by itself is not sufficient to establish the occurrence of the alleged stressor. Instead, the record must contain service records or other evidence to corroborate the veteran's testimony or statements. See Moreau v. Brown, 9 Vet. App. 389, 394 (1996). The question of whether a veteran was exposed to a stressor in service is a factual one, and VA adjudicators are not bound to accept uncorroborated accounts of stressors or medical opinions based upon such accounts. Wood v. Derwinski, 1 Vet. App. 190 (1991), aff'd on reconsideration, 1 Vet. App. 406 (1991). Hence, whether a stressor was of sufficient gravity to cause or support a diagnosis of a psychiatric disorder, to include PTSD, is a question of fact for medical professionals and whether the evidence establishes the occurrence of stressors is a question of fact for adjudicators. In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Service Connection - Analysis Here, the Veteran asserted that he developed PTSD from his experiences in Vietnam, namely rocket attacks on his compound in Vietnam and seeing the body of someone he knew who had been shot in the back. See May 2011 Statement In Support of Claim. In a January 2013 letter to VA, the Veteran's widow asserted that her husband was diagnosed with PTSD at least twice prior to his death. The threshold question that must be addressed is whether the Veteran actually had the disability for which service connection is sought; specifically PTSD. In the absence of proof of a present disability, there is no valid claim of entitlement to service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As will be discussed, the Board finds that the Veteran had not met the criteria for a valid diagnosis of PTSD during the course of the appeal, and, in this regard, the various diagnoses of PTSD of record were not made in accordance with DSM-IV. The Veteran's service treatment records, from his June 1960 pre-induction examination to his July 1986 pre-retirement examination, are silent as to psychiatric issues. The earliest record evidence of psychiatric issues is shown in May 2004 when private clinical psychologist L.D. diagnosed PTSD. However, while L.D.'s diagnosis includes the brief notation "frequency and severity of flashbacks," she did not offer any explanation or rationale in support of the diagnosis, and the report includes no references to the Veteran's military service, to include any fear of hostile military or terrorist activity. VA progress notes dated April 2011 and January 2013 reflect that VA physician G.H. diagnosed "Axis I" PTSD, noting that the Veteran had a history of flashbacks, nightmares, and explosiveness. However, Doctor G.H. offered no explanation or rationale in support of the diagnosis, the progress notes reflect no information for Axes II through V, and there is no indication that the Veteran's stressors included military events or a fear of hostile military or terrorist activity. In January 2013, Doctor G.H. noted that, while the Veteran had symptoms of PTSD, his mental processes were already affected by the progressive neurological disorder supranuclear palsy. A VA PTSD examination dated September 2011 reflects that it was conducted in accordance with DSM-IV, but found that the Veteran's symptoms failed to meet DSM-IV criteria sufficient to establish a PTSD diagnosis. For example, the examiner recorded that the Veteran did not meet the symptom severity for several criterion and the Veteran's M-PTSD scores, based on a 35-item self-reporting assessment of combat-related PTSD, were well below the threshold required for identifying PTSD cases with high levels of certainty. The VA examiner recorded that the Veteran's supranuclear palsy made it difficult for him to speak. In April 2013, the same VA examiner met again with the Veteran, noting that an assessment could not be conducted because the Veteran's impairment from supranuclear palsy had grown worse, rendering him unable to converse or communicate in writing. The June 2017 VA examination report, noted above, concedes that the Veteran likely had stressors related to a fear of hostile military or terrorist activity; but the examiner opines that it was less likely than not that the Veteran had PTSD, explaining that the mere presence of a stressor does not imply that the disorder necessarily follows. The VA examiner reviewed letters the Veteran sent to his family in 1968 from Vietnam, describing rocket and mortar attacks on his compound there, but reporting that he was "fine" and indicated that "all is well," suggesting no significant symptoms characteristic of trauma, a stressor-related disorder, depression, anxiety, or other psychiatric disorder at that time. Furthermore, the examiner noted that there is no record of the Veteran receiving mental health treatment until 2004, when he was evaluated by clinical psychologist L.D., and that, at age 74 at that time, the Veteran's symptoms more likely were associated his severe medical issues, such as lung cancer, which L.D. also stated in her report. Notably, the VA examiner found L.D.'s May 2004 diagnosis erroneous, in part, because L.D.'s notes do not reflect the application of DSM-IV criteria, and there is no documentation that she used objective data, such as psychological testing, to support her diagnosis, or that a thorough history was elicited describing the known progression of the disorder. The VA examiner also considered negative perfunctory VA PTSD screenings in 2007 and 2008, the September 2011 VA examination, which used DSM-IV criteria to determine that a PTSD diagnosis was not warranted, and the April 2011 diagnosis by VA physician G.H. The VA psychologist opined that Doctor G.H.'s diagnosis on the basis of a history of flashbacks, nightmares, and explosiveness was inappropriate because the Veteran's neurological disorder had already impacted his mood and behavior by that time, and the diagnosis rested entirely on the Veteran's self-reported history. Finally, the June 2017 VA examiner recognized that the Veteran had undergone a personality change due to the progressive nature of his neurological disorder. It is the responsibility of the Board to assess the credibility and weight to be given the evidence. The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. The Board may appropriately favor the opinion of one competent medical authority over another. The weight of a medical opinion is diminished where that opinion is ambivalent, based on an inaccurate factual premise, based on an examination of limited scope, or where the basis for the opinion is not stated. The Board finds the September 2011 and June 2017 VA opinions that the Veteran did not meet the criteria for a diagnosis of PTSD, to be highly probative. The September 2011 examiner reviewed relevant medical records, her opinion was consistent with DSM-IV criteria, and she also provided insight into why the Veteran's symptoms did not satisfy DSM-IV criteria. Both examiners noted reviewing the Veteran's pertinent medical records, and set forth sufficient rationales, primarily that while the Veteran reported stressors that arose from a fear of hostile military action during service, he did not satisfy DSM-IV criteria sufficient to establish a diagnosis of PTSD. By contrast, the Board finds the May 2004 diagnosis by the private clinical psychologist and the April 2011 and January 2013 diagnoses by the VA physician to carry significantly less weight because neither diagnosis includes a rationale for its medical conclusions, and neither clinician explained whether the stressors noted in their reports satisfied DSM-IV criteria. See Stefl v. Nicholson, 21 Vet. App. at 124 (2007) ("[A] medical opinion . . . must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). Where the basis for the diagnosis of PTSD, and, particularly, the stressors upon which the diagnosis is predicated are not discussed by the clinician, it reduces the probative weight in comparison to an opinion ruling out such a diagnosis, where the reasons for ruling in or out specific diagnoses are provided. This is a significant point because the record contains opinions finding that not all of the diagnostic criteria for PTSD were met. While the Board is not competent to provide a diagnosis, it is the Board's responsibility to compare and weigh the opinion evidence in light of reasoning expressed by a competent clinician. As noted above, the weight of a medical opinion is diminished where that opinion is ambivalent, based on an inaccurate factual premise, based on an examination of limited scope, or where the basis for the opinion is not stated. In this case, the May 2004 diagnosis by the private clinical psychologist and the April 2011 and January 2013 diagnoses by the VA physician have less probative weight as compared to the 2011 and 2017 VA opinions because the basis for the diagnosis of PTSD was not given and there was no discussion of how it was related to military stressors. Although the appellant sincerely believes that the Veteran had PTSD, as did the Veteran when he was living, and lay persons are competent to provide opinions on some medical issues, in this case the question of whether the Veteran had PTSD falls outside the realm of common knowledge of any lay person and is an issue requiring medical expertise, as set forth above. Therefore, while the statements of the Veteran and the appellant are duly considered by the Board, they, respectfully, are not competent to render a diagnosis or a medical opinion with respect to the issue of entitlement to service connection for PTSD. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 n. 4 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). To summarize, the Board finds the opinions of the September 2011 and June 2017 VA examiners to be significantly more probative than the May 2004, April 2011 and January 2013 diagnoses by the Veteran's treating providers. See Owens v. Brown, 7 Vet. App. 429, 433 (1995) (holding that VA may favor the opinion of one competent medical expert over that of another when decision makers give an adequate statement of reasons and bases). Therefore, the Board finds that the most probative evidence of record shows that the Veteran did not have a valid diagnosis of PTSD at any time during the pendency of the appeal. Id. at 433. Accordingly, the Board must conclude that entitlement to service connection for PTSD must be denied because the weight of the evidence is against the claim. See 38 U.S.C. §§ 1110; 1131; 38 C.F.R. §§ 3.303, 3.304; McClain v. Nicholson, 21 Vet. App. 319 (2007). In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Finally, because the threshold element of a current disability is not met in this case, it is unnecessary to address the remaining elements necessary to establish the service connection claim, or other theories of entitlement to service connection. ORDER Entitlement to service connection for an acquired psychiatric disorder, to include PTSD is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs