Citation Nr: 1807362 Decision Date: 02/05/18 Archive Date: 02/14/18 DOCKET NO. 14-25 220A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a psychiatric disorder, claimed as posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD T. Adams, Counsel INTRODUCTION The Veteran served on active duty from July 1959 to July 1963 and from August 1965 to May 1981. He received medals and awards including the Air Medal, the Vietnam Service Medal with Bronze Star, and the Republic of Vietnam Campaign Medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision by the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA). The case was remanded for additional development in July 2016 and August 2017. It is now ready for adjudication. Although a Veteran might only claim service connection for a particular psychiatric disorder, the claim cannot be a claim limited only to that diagnosis, but must rather be considered a claim for any mental disability that may be reasonably encompassed. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board will consider entitlement to all psychiatric diagnoses raised by the record. 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). FINDINGS OF FACT 1. The preponderance of the evidence weighs against a finding that the Veteran has PTSD at this time. 2. Giving him the benefit of the doubt, the Veteran has an anxiety disorder and a major depressive disorder that are related to service. CONCLUSIONS OF LAW 1. 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). 2. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for a psychiatric disorder, currently diagnosed as adjustment disorder with anxiety and depressed mood, are met. 38 U.S.C. § §§ 1110, 1131, 1507 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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) (2015). In August 2014, VA amended 4.125 by changing DSM-IV to DSM-5. See Fed. Reg. 45093 (Aug. 4, 2014). In adjudicating a claim for service connection for PTSD, the evidence necessary to establish the incurrence of a stressor during service to support a claim of entitlement to service connection for PTSD will vary depending on whether or not the Veteran was 'engaged in combat with the enemy.' See Hayes v. Brown, 5 Vet. App. 60, 66 (1993). If it is determined through military citation or other supportive evidence that a veteran engaged in combat with the enemy, and the claimed stressors are related to combat, a veteran's lay testimony regarding the reported stressors must be accepted as conclusive evidence as to their actual occurrence and no further development or corroborative evidence will be necessary, provided that the testimony is found to be satisfactory, that is, not contradicted by service records, and 'consistent with the circumstances, conditions, or hardships of such service.' 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d),(f); Doran v. Brown, 6 Vet. App. 283, 289 (1994). To gain the benefit of a relaxed standard for proof of service incurrence of an injury or disease, 38 U.S.C. § 1154(b) requires that a veteran have actually participated in combat with the enemy. See VAOPGCPREC 12-99. 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 an acquired psychiatric disorder, claimed as PTSD, that is related to his service. The record reflects that the Veteran participated in combat. Thus, the only remaining issue is whether the Veteran now actually suffers from PTSD, or another psychiatric disability that was caused by or the result of his in-service stressors. At the outset, the Board notes that in an October 2009 letter the Veteran was informed that the RO received notification from the National Personnel Records Center and/or the VA Records Management Center that they were unable to locate his complete service treatment records (STRs) and that futile efforts to locate would be futile. In a case such as this, where it appears that the Veteran's STRs are unavailable, the Board's obligation to explain its findings and conclusions, and to consider carefully the benefit-of-the-doubt rule, is heightened. Washington v. Nicholson, 19 Vet. App. 362, 371 (2005); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). This does not mean that there is a lower legal standard for proving a claim for service connection. Rather, it increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant. See Russo v. Brown, 9 Vet. App. 46 (1996). The following analysis has been undertaken with this heightened duty in mind. The available STRs include an October 1959 note which indicates that the Veteran was experiencing insomnia and nervousness. The Veteran's SPRs include performance evaluations which show that the Veteran excelled in his duties. These include a January 1976 evaluation report which shows that the Veteran was "top notch in all respects" in his duties as a Master at Arms. Post-service, the record includes April and May 2010 statements from the Veteran's fellow service members and crew mates related to being witnessing the removal of the dead and wounded soldiers from C-130 aircraft around November 1966. VA treatment records include a November 2010 psychiatry initial assessment which indicates a history of depression and suicidal thoughts for a year. However, the Veteran stated that he had "stress" from events during service. It was also noted that he was still grieving over the loss of his son by suicide a few years ago and the death of his mother five years ago. With regard to service, during Marine Corps training he saw a friend's head explode and the blood landed on him and stated that he was injured by shrapnel. He stated that in 1982 he overdosed and was treated at NAS Jacksonville. Other stressors included having his plane hit in while landing in Vietnam. In 1968, there were many deaths and he and another man had to carry litters. When he was US Marshal stateside someone cut the back tire of his motorcycle causing him to lose control, but he was not seriously injured. He was diagnosed with chronic PTSD and adjustment disorder with depressed mood. Post-service, private psychiatrist records dated from May 2017 to July 2017 indicate diagnoses of PTSD and impulse control disorder. In September 2011, the Veteran was afforded a VA psychiatric examination and the psychiatrist diagnosed an anxiety disorder, not otherwise specified (NOS), and a depressive disorder, NOS. The Veteran indicated that he attempted suicide in 1978 when he mixed alcohol and pain killers, ended up in the emergency room, and was hospitalized for two weeks. He also reported combat service in Vietnam where he "witnessed death" and "carried bodies . . . [of] dead and wounded soldiers." The examiner found that reported stressor of combat service in Vietnam met Criterion A to support a diagnosis of PTSD; however, the Veteran did not meet the full criteria for a diagnosis of PTSD under DSM-IV criteria. The examiner determined that the Veteran's diagnoses of an anxiety disorder, NOS, and a depressive disorder, NOS, were "less likely as not" caused by or related to his conceded stressor of fear of hostile military or terrorist activity because there was no objective evidence of mental illness while in service, the Veteran's anxiety and depression appeared to be related to the Veteran's post-service medical conditions and unexpected death of a family member, and the Veteran had a long, successful military career and continued to work for several years following separation from service. In June 2014, an addendum psychiatric medical opinion was requested because the examiner overlooked an October 1959 service treatment note documenting that the Veteran was experiencing insomnia and nervousness. Instructions to the examiner included a note that a significant portion of the Veteran's service treatment records (from 1965 to 1981) were unavailable and that the Veteran reported being treated for mental symptoms in 1968 and 1969. Following a review of that memorandum and the evidence, the examiner determined the opinion remained the same as there was no objective medical evidence that the symptoms of insomnia and nervousness reported in 1959 developed into a chronic condition. In a July 2016 remand, the Board found the reasoning in the September 2011 and June 2014 opinions, taken together, was inadequate. First, in providing a negative opinion, the examiner completely discounted the Veteran's statements that he sought mental health treatment in 1968 and 1969 and that he attempted suicide during active duty service in 1978. Instead, the examiner relied solely on objective medical evidence, or lack thereof. In that regard, even upon being informed that a large majority of the Veteran's STRs were unavailable, the examiner continued to base the negative opinion on the lack of objective medical evidence of chronic mental health symptoms. As such, these opinions were deemed inadequate. Specifically, the Board requested the examiner to first identify all acquired psychiatric disorders under the DSM-5 criteria that have been present during the period of the claim (from August 2010 to the present) and to provide an opinion as to whether the psychiatric disorder began in or was otherwise etiologically related to the Veteran's active service. Pursuant to the Board's July 2016 remand, in December 2016 a VA examiner found the criteria for a diagnosis of PTSD were not met and provided a diagnosis of adjustment disorder with anxiety and depressed mood. The Board found that the examiner, however, failed to provide opinions as to whether the criteria for a diagnosis of PTSD were otherwise manifest during the appeal and whether it was at least as likely as not that the adjustment disorder began in or was otherwise etiologically related to active service. Accordingly, in August 2017 the Board again remanded the matter for an opinion as to whether the criteria for a diagnosis of PTSD for any identifiable period during the appeal, and/or whether he had adjustment disorder, anxiety and depressed mood that was onset during active service, or was etiologically related to his active service. Pursuant to the Board's August 2017 remand, in September 2017 a VA psychologist reviewed the available records (without in-person or video tele health examination) using the Acceptable Clinical Evidence (ACE) process. The psychologist considered the Veteran's service personnel records and post-service VA medical records which reflect diagnoses of PTSD. However, he opined that PTSD criteria were not seen as being met. Adjustment disorder with anxiety and depressed mood were not seen as being due to active service or etiologically related to his service, but are of more recent origin. The rationale was that, according to the psychologist, the most telling documents were the performance evaluations in the closing years of his service in the late 1970s, where he was rated in the top 1% of all the categories. The psychologist did not question whether the Veteran experienced some traumatic experiences during service. However, his high-functioning for many years after they occurred was perceived as evidence that he was not being adversely affected by such traumatic events and had put them behind him in appropriate ways. The psychologist cited the Veteran's numerous health problems and difficulty dealing with deaths in his family, including his mother and stepson, and concluded that the adjustment disorder diagnosis was due to more current issues in his life, and not from his service. 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. § 1131, an appellant must submit proof of a presently existing disability resulting from service in order to merit an award of compensation). Pursuant to the Board's remands, in an August 2017 VA medical opinion, a VA psychologist opined that the Veteran does not have a diagnosis of PTSD providing evidence against this claim. This opinion 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 in 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 September 2017 VA medical opinion, 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 construed the Veteran's claim very broadly. See, Clemons. As previously stated, the Veteran's available STR dated in October 1959 indicates that the Veteran experienced insomnia and nervousness. Post-service, the September 2011, December 2016 and September 2017 VA examiners diagnosed adjustment disorder with anxiety and depressed mood. However, in a September 2011 VA medical opinion, June 2014 addendum, and September 2017 VA medical opinion, the examiner opined that the adjustment disorder was not related to service. The examiners primarily focused on the fact that PTSD was not the diagnosis and that the Veteran had psychiatric symptoms that were related to post-service events. However, the Veteran continues to assert that his psychiatric symptomatology is related to his service. While the Veteran's in-service stressors were deemed insufficient to support a PTSD diagnosis, neither examiner discussed why they were insufficient to cause or contribute to cause the current diagnosis as is permitted by 38 C.F.R. § 3.303 (d) and consistent with 38 U.S.C. § 1154 (a) (When a veteran seeks service connection for a disability, due consideration shall be given to the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which he served, his military records, and all pertinent medical and lay evidence.) Thus, the Board finds that the medical evidence of record is in relative equipoise as to the matter of whether psychiatric disability, currently diagnosed as adjustment disorder with anxiety and depression, is attributable to service. Remanding the claim a third time for another VA examination and medical opinion would only serve to further delay the Veteran's entitlement to benefits. Resolving all doubt in favor to the Veteran, the Board finds that the criteria for service connection for a psychiatric disorder, currently diagnosed as adjustment disorder with anxiety and depressed mood, are met. See 38 U.S.C. § 1507; 38 C.F.R. § 3.102. For several reasons cited above, further discussion of the evidence is simply not warranted. The nature and extent of this disability caused by service is not currently before the Board. ORDER Service connection for PTSD, is denied. Service connection for a psychiatric disorder, currently diagnosed as adjustment disorder with anxiety and depressed mood, is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ KELLI A. KORDICH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs