Citation Nr: 1807874 Decision Date: 02/07/18 Archive Date: 02/20/18 DOCKET NO. 14-13 406 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for a cognitive disorder. 2. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD RLBJ, Associate Counsel INTRODUCTION The Veteran served honorably in the United States Army from April 1970 to February 1972. These issues arrive before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office in Lincoln, Nebraska. (Hereinafter, the agency of original jurisdiction (AOJ).) In April 2016, the Veteran testified at a Travel Board Hearing before the undersigned Veterans Law Judge (VLJ). The hearing transcript is located in the Veterans Benefit Management System (VBMS). The Veteran's entire claims file is found on the VBMS and/or Legacy Content Manager (LCM) databases. The Veteran's claim for service connection for PTSD was originally denied in an unappealed September 2007 rating decision, due to lack of information to corroborate an in-service stressor. New and material evidence would ordinarily be required to reopen this claim. 38 U.S.C.A. § 5108 (West 2014). However, in July 2010, VA amended its adjudication regulations regarding claims for service connection for PTSD by liberalizing the evidentiary standard for establishing the required in-service stressor. See 75 Fed. Reg. 39,843 (July 13, 2010). The Board notes that, "[w]hen a provision of law or regulation creates a new basis of entitlement to benefits, as through liberalization of the requirements for entitlement to a benefit, an applicant's claim of entitlement under such law or regulation is a claim separate and distinct from a claim previously and finally denied prior to the liberalizing law or regulation." See Routen v. West, 142 F.3d 1434, 1441, citing Spencer v. Brown, 17 F.3d 368, 373 (Fed. Cir. 1994). Accordingly, the Board will adjudicate the claim on a de novo basis without requiring new and material evidence to reopen. The issue of entitlement to service connection for a cognitive disorder is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDING OF FACT The weight of the evidence is against a finding that the Veteran has PTSD or any other acquired psychiatric disorder that is etiologically related to his military service. CONCLUSION OF LAW 1. The criteria for service connection for an acquired psychiatric disorder, to include PTSD have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.655, 4.125 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (noting that the Board must review the entire record, but does not have to discuss each piece of evidence). 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 Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (finding that the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). I. VCAA Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Notice must be provided to a veteran before the initial unfavorable AOJ decision on a claim for VA benefits and must: (1) inform the veteran about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the veteran about the information and evidence that VA will seek to provide; and (3) inform the veteran about the information and evidence the veteran is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service-connection claims, a section 5103(a) notice should also advise a veteran of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). Here, the Veteran was sent VCAA-compliant correspondence in June 2007 for his entitlement claim for PTSD. In the letter, VA explained what information and evidence was needed to substantiate a claim for service connection, as well as what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA. The letter also provided the Veteran with information pertaining to the assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman, 19 Vet. App. 473. The Veteran received additional VA notice, for both issues listed on the title page, through correspondence in February 2013. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. The VA's duty to assist under the VCAA includes helping claimants to obtain service treatment records (STRs) and other pertinent records, including private medical records (PMRs). 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). VA received the Veteran's STRs in June 1972, and they are found in VBMS. Additionally, the Veteran's government and non-government treatment records have been associated with the record. The VA's duty to assist also includes providing a medical examination and/or obtaining a medical opinion when necessary to make a decision on the claim, as defined by law. See 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The VA examination and/or opinion must be adequate to decide the claim. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran has undergone two VA examinations for the claims currently on appeal. See March 2013 and August 2014 VA Examination Reports. Although additional AOJ development is needed for the cognitive disorder claim, VA has fulfilled its duty to assist the Veteran compile competent medical evidence to substantiate his claim for an acquired psychiatric disorder to include PTSD. Also of record, and considered in connection with the claims on appeal, are the various statements provided by the Veteran, the Veteran's representative, witnesses, and hearing testimony. With respect to the hearing, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2014) requires that the VLJ who chairs a hearing fulfill two duties. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, neither the Veteran nor his representative has asserted that undersigned VLJ failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the Board hearing. The hearing focused on the elements necessary to substantiate the claims. The Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate a claim for service connection. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). In summary, the duties imposed by the VCAA have been considered and satisfied. The Veteran has been notified and made aware of the evidence needed to substantiate this claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Board finds that all necessary development has been accomplished for the issue considered below; therefore, appellate review and resolution of this issue may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Service Connection in General The Veteran seeks service connection for an acquired psychiatric disorder, to include PTSD. Generally, to establish service connection, "the veteran must show: (1) a present disability; (2) the in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between them." 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 the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In each case where service connection for any disability is sought, due consideration shall be given to the places, types, and circumstances of the Veteran's service as shown by the Veteran's service record, the official history of each organization in which the Veteran served, the Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). In making these determinations, the Board must consider and assess the credibility and weight of all evidence in the claim file, including the medical and lay evidence, to determine its probative value. In doing so, the Board must provide its reasoning for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Barr v. Nicholson, 21 Vet. App. 303 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board must give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a)(West 2015); 38 C.F.R. § 3.303 (a)(2016); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006)(addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). III. Analysis In his January 2013 Statement in Support of Claim, the Veteran expressed his desire to pursue service connection for, "PTSD/Anxiety/adjustment disorder." In January and April 2014, respectively, the Veteran's daughter and wife offered statements in support of the claim for entitlement to service connection for an acquired psychiatric disorder, to include PTSD. Therein, both the daughter and wife describe the psychological symptoms displayed by the Veteran, and how those symptoms effected his interactions with others. Throughout this appeal, the Veteran has maintained that he suffers from PTSD. He has pointed to numerous psychological stressors, i.e. rats, military dogs, etc. The Veteran is competent to comment on topics that are capable of lay observation. See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007). The Veteran is not competent to self-diagnose a psychiatric disorder, because he does not possess the training, knowledge or expertise to render a medically competent diagnosis. See 38 C.F.R. § 3.159 (a)(2); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997). In January 2013, the Veteran was seen by a clinical psychologist, Dr. W. Along with notations for the Cluster A - D symptoms, Dr. W assigned a PTSD diagnosis and a GAF score of 55. Dr. W reported that, "(the Veteran) does not identify a singular incident, but rather implicates the global, crushing fear he experienced every single day in Viet Nam." In March 2013, the Veteran underwent a VA examination to determine the nature and etiology of any acquired psychiatric disorders, to include PTSD. The VA provider, Dr. M, supplied a diagnosis of cognitive disorder, not otherwise specified (NOS). No other psychiatric disorder was diagnosed, and Dr. M did not diagnose PTSD. Dr. M did, however, comment on the PTSD diagnosis provided by Dr. W two months prior. Dr. M explained tha the PTSD diagnosis provided by Dr. W was not sufficient because the incidents the Veteran identified do not satisfy the DSM criteria. Specifically, Dr. M provided the following: 1) The various incidents described by the Veteran were not actual threats of death or serious threats to physical integrity to satisfy the A criteria; 2) The Veteran's fear of rats was not due to hostile enemy or terrorist activity and, therefore, did not satisfy the A criteria; and 3) The overall stress the Veteran felt from "just being there" did not satisfy the A criteria. Moreover, Dr. M notes that, "the Veteran does not meet the B, C, D, E or F criteria for PTSD specific stressor information." Ultimately, Dr. M posited that "a treatment diagnosis of PTSD . . . differs substantially from a C and P examination for PTSD," and the January 2013 diagnosis supplied by Dr. W was for the Veteran's treatment. In August 2014, Dr. M provided another report about the Veteran's psychological disorder. After review of the claims file, Dr. M restated his previous view about the Veteran's symptoms with regard to his PTSD entitlement claim. Therein, Dr. M opines, "a treatment diagnosis is that whereby one is entitled to treatment for reported symptoms. A C and P examination diagnosis differs as this is a medico-legal examination not to treat, but to exact out the stressor information, and to corroborate how that relates exactly to PTSD symptoms. The veteran's information is one where he reports fear. Many people have fear in various situations, and that does not mean that they have a diagnosis of PTSD. The veteran's stressor information is one whereby this does not rise to a level whereby he was never confronted with an actual threatened death or serious threat to the physical integrity of self. As he does not meet the A criteria of PTSD, he does not meet a PTSD diagnosis. I remain steadfast in my opinion that he does not meet the DSM-5 or DSM-4 criteria for PTSD." As noted earlier, the first, requisite element of a direct service-connection claim is the presence of a current disability. Shedden, 381 F.3d at 1167. For the Veteran's claim to entitlement for PTSD, the only available diagnosis is cognitive disorder, NOS. See March 20143 and August 2014 VA Examination Reports. The PTSD diagnosis supplied by Dr. W was for treatment purposes, which has relatively low threshold diagnostic criteria. For the two opinions offered by Dr. M, the Veteran did not satisfy the DSM-IV diagnosis for PTSD, because the DSM criteria have a higher diagnostic threshold than for the treatment diagnosis. While assessing the probative value of the perspective reasons or bases, the Board will consider whether the medical conclusion is: 1) based on sufficient facts or data; 2) the product of reliable principles and methods; and 3) the result of principles and methods reliably applied to the facts. See Nieves-Rodriguez v. Peake, 22 Vet App 295, 302 (2008). Where medical opinions conflict, the Board "may favor one medical opinion over another" if it offers an adequate statement of reasons or bases. D'Aries v. Peake, 22 Vet. App. 97, 107 (2008). Here, the Board assigns greater probative weight to the reasons and bases provided by Dr. M. The opinions offered by Dr. M. are more thorough than the notations of PTSD in the Veteran's clinical records as Dr. M. discussed each element required for a diagnosis of PTSD and explained, with appropriate citation to other evidence of record, why the Veteran did not meet the criteria for a diagnosis of PTSD. Ultimately, the first element of a service-connection claim for PTSD is absent, because the Veteran does not have a PTSD diagnosis. Shedden, 381 F.3d at 1167. In order for the Board to award service connection for PTSD, the Veteran must meet DSM diagnostic criteria. See 38 C.F.R. § 4.125. The Board finds that the preponderance of the evidence is against the Veteran's claim for entitlement to service connection for PTSD. Accordingly, this service-connection claim must be denied. In reaching this determination, the Board again acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. Further, the Board concludes that the weight of the finding that the Veteran has an acquired psychiatric other PTSD or a cognitive disorder that is etiologically related to service. In this regard, the Veteran's service treatment records are silent for any complaints, treatment, or diagnosis related to an acquired psychiatric disorder. Moreover, the record does not show that an acquired psychiatric disorder was initially manifested within one year of the Veteran's separation for active duty. Finally, the weight of the clinical records is against a finding that the Veteran has a currently diagnosed acquired psychiatric disorder other than PTSD and a cognitive disorder. In light of the foregoing, the Board concludes that service connection for an acquired psychiatric disorder, to include PTSD is not warranted. This doctrine of reasonable doubt, however, is inapplicable in this case because the preponderance of the evidence is against the Veteran's claim. See Gilbert, 1 Vet. App. at 55; 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for an acquired psychiatric disorder to include PTSD is denied. REMAND Upon review of the record, the Board concludes that further evidentiary development is necessary. Although the Board sincerely regrets this delay and is appreciative of the Veteran's service to his country, a remand is necessary to ensure VA provides the Veteran with appropriate assistance in developing his claim prior to final adjudication. In March 2013, the Veteran underwent a VA examination to determine the nature and etiology of any identified psychological disorders. At that time, Dr. M diagnosed a cognitive disorder, NOS. In August 2014, Dr. M reviewed his earlier diagnostic notations and opinion(s). At that time, he confirmed and continued his diagnosis of a cognitive disorder, NOS. For both the March 2013 and August 2014 diagnosis and opinions, Dr. M provided a thorough and clear analysis with precise opinions. Unfortunately, the Board concludes that both reports are inadequate, because they fail to address the etiology of the Veteran's cognitive disorder, NOS. Instead, Dr. M maintained a focus on the DSM criteria for PTSD, failing to evaluate and comment on the etiology of the Veteran's cognitive disorder, NOS. The Court has held that, once VA undertakes the effort to provide an examination for a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Daves v. Nicholson, 21 Vet. App. 46, 51 (2007), citing Green v. Derwinski, 1 Vet. App. 121, 123-124 (1991); Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence ... is essential for a proper appellate decision"). Additionally, when indicated, the examiner may have an obligation to conduct research in the medical literature depending on the evidence in the record at the time of examination. See Wallin v. West, 11 Vet. App. 509, 514 (1998). The Veteran's wife conveyed two possible etiologies for the psychological disorder endured by the Veteran. See April 2016 Hearing Transcript. Unfortunately, the etiology of a psychiatric disorder falls well outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372, 1733 n. 4 (Fed. Cir. 2007). Moreover, the Board cannot make its own medical conclusion about the etiology of the Veterans cognitive disorder, but must rely on medical opinions that are supported by the evidence in the Veteran's claims file. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Accordingly, the case is REMANDED for the following action: 1. The AOJ should inquire whether the Veteran has received treatment at any other facility, private or through the VA, for his psychiatric disorder(s). The AOJ should then obtain any and all updated treatment records from the relevant VA Medical Centers, and any identified private medical providers, where the Veteran has received treatment. All efforts to obtain these records should be fully documented, and a negative response must be provided if records are not available. 2. Schedule the Veteran for a VA psychiatric examination by a VA professional qualified to make psychiatric examinations. The claims file and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. The examiner must state that the claims file was reviewed. All necessary tests should be conducted using the DSM standards. Based on the review of all the evidence of record, the VA examiner is asked to address the following questions: (a) The VA examiner shall list all of the Veteran's disabilities manifested by cognitive impairment. (b) Then, for each diagnosis, the examiner should set forth a medical opinion as to whether it is at least as likely as not (i.e., 50 percent or greater probability) that any identified psychiatric disorder(s) was incurred in or is otherwise related to service. A rationale for any opinion reached should be provided. If the VA examiner concludes that an opinion cannot be offered without engaging in speculation then he/she should indicate this and explain the reason why an opinion would be speculative. 3. After all development has been completed, the RO should readjudicate the issue. If the benefits sought remain denied, the Veteran and his representative should be furnished a supplemental statement of the case, and be given an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter or 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.A. §§ 5109B, 7112 (West 2014). ______________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs