Citation Nr: 1808522 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 10-14 090 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for a psychiatric disability, to include depression and posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Gillian A. Flynn, Associate Counsel INTRODUCTION The Veteran had active service from October 1969 to May 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, NY. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in April 2017. A transcript of that hearing is of record. This case was last before the Board in August 2017, when the claim was remanded for a VA examination. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran has a current diagnosis of PTSD under the applicable diagnostic criteria. 2. A chronic psychiatric disorder, to include depression and PTSD, was not shown in service or for many years thereafter; and, the preponderance of evidence is against a finding that the Veteran has any diagnosed psychiatric disability that is etiologically related to active service. CONCLUSION OF LAW The criteria for entitlement to service connection for a psychiatric disability, to include depression and PTSD, have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304(f), 4.130 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran claims service connection for a psychiatric disability, to include depression and PTSD. He specifically asserts that he has a psychiatric disability as a result of an in-service sexual assault. The Board has thoroughly reviewed all the evidence in the claims file. The Board has an obligation provide reasons and bases supporting a decision. However, there is no need to discuss, in detail, the evidence submitted by or on behalf of the Veteran. The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence of record and on what the evidence shows, or does not show, on the claims. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not given to each piece of evidence contained in the record. Every item of evidence does not have the same probative value. When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duties to Notify and Assist VA has a duty to notify a Veteran of the information and evidence necessary to substantiate a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). VA also has a duty to assist Veterans in the development of claims. 38 U.S.C. §§ 5103, 5103A (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C. § 5103(a) (2012); 38 C.F.R. § 3.159(b) (2017); Quartuccio v. Principi, 16 Vet. App. 183 (2002). 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 to provide; and (3) that the claimant is expected to provide. The notice should be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between service and the disability; (4) degree of disability; and (5) effective date of the disability. The notice should include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Correspondence dated March 2011 provided all necessary notification to the Veteran. VA has done everything reasonably possible to assist the Veteran with respect to the claims for benefits. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c) (2017). The service medical records have been associated with the claims file. All identified and available treatment records have been secured, which includes VA examinations and VA health records. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the veteran. 38 U.S.C. § 5103A (2012); 38 C.F.R. §§ 3.159(c)(4), 3.326(a) (2017); McLendon v. Nicholson, 20 Vet. App. 79 (2006). An adequate examination must consider the issue at hand and provide sufficient analysis for the Board to weigh that examination against others. Stefl v. Nicholson, 21 Vet. App. 120 (2007). However, there is no reasons or bases requirement imposed on examiners. Acevedo v. Shinseki, 25 Vet. App. 286 (2012). Rather, a medical opinion is adequate when it is based on consideration of a Veteran's prior medical history and examinations, and the final report describes the disability in sufficient detail so that the Board's evaluation of the claimed disability will be a fully informed one. Ardison v. Brown, 6 Vet. App. 405 (1994); Green v. Derwinski, 1 Vet. App. 121 (1991). Concerning the issue of entitlement to service connection for a psychiatric disability, the Board finds that the medical examination report of October 2017 is adequate for the purpose of making a decision. 38 C.F.R. § 4.2 (2017); Barr v. Nicholson, 21 Vet. App. 303 (2007). Additionally, in light of the performance of the requested examination, and the further adjudication of the appeal, the Board finds that there has been substantial compliance with the prior remand request. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008); Dyment v. West, 13 Vet. App. 141 (1999). The Board is satisfied that all relevant facts have been adequately developed to the extent possible and that no further assistance is required to comply with the duty to assist. Accordingly, the Board will proceed with a decision. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2017). In addition, disabilities diagnosed after separation from service may also be service-connected if all the evidence, including pertinent service records, establishes the disability was incurred in service. 38 C.F.R. § 3.303(d) (2017); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). 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. Holton v. Shinseki, 557 F.3d 1363 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Regarding direct service connection, where a chronic disease is shown during service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. Continuity of symptomatology is required where the condition noted during service is not shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. In these latter circumstances, a showing of continuity of symptomatology since service is required to support the claim. 38 C.F.R. § 3.303(b) (2017). However, the availability of continuity of symptomatology to substantiate service connection is limited to cases involving those specific diseases denoted as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The chronic diseases listed in § 3.309(a) include psychoses, but not neuroses, and will be presumed to have been incurred in service if manifested to a compensable degree within one year following separation from service. That presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2017). VA is to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a) (2012). Medical evidence is not always or categorically required in every instance to establish a medical diagnosis or the required nexus between the claimed disability and service. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2) (2017). Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and may provide sufficient support for a claim of service connection. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Board must assess the competence and credibility of lay statements. Barr v. Nicholson, 21 Vet. App. 303 (2007). For appeals initially certified to the Board prior to August 4, 2014, as here, establishing service connection for psychiatric disorders, including depression and PTSD, requires medical evidence diagnosing the conditions under the Diagnostic And Statistical Manual For Mental Disorders, Fourth Edition (DSM-IV); a link, established by medical evidence, between current symptoms and an in-service stressor event; and credible supporting evidence that the claimed in-service stressor event occurred. 38 C.F.R. §§ 3.304(f), 4.125(a) (2017). Effective July 13, 2010, the regulations governing PTSD claims eliminate the requirement for corroborating that the claimed in-service stressor occurred if a stressor claimed by a Veteran is related to his 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, provided that the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service. 38 C.F.R. § 3.304(f)(3) (2017). VA will not deny a PTSD claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than the Veteran's service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing the claimant the opportunity to furnish that type of evidence or advise VA of potential sources of such evidence. Examples of such evidence include, but are not limited to: records from law enforcement authorities;; mental health counseling centers, hospitals, or physicians; and statements from family members, roommates, fellow service members, or clergy. 38 C.F.R. § 3.304(f)(5) (2017). PTSD The Veteran asserts that he has a psychiatric disability, to include depression and PTSD, as a result of an in-service stressor. According to the Veteran's original October 1996 claim, he reported that he was hospitalized for a psychiatric condition in 1969 while in service. The Veteran also testified at May 2013 and March 2017 hearings that he had been hospitalized for a psychiatric complaint while in service. However, the Board finds that the preponderance of the evidence is against a finding that the Veteran has a service-related psychiatric disability. Although early VA medical records report that the Veteran had depression and PTSD, a June 2014 VA medical record notes that there was no evidence of record that the Veteran ever met the full diagnostic criteria for PTSD. The examiner noted that the Veteran had reported nightmares, but only one episode of hallucinations, one episode of flashbacks, and memories triggered by seeing boys the same ages as his dead sons. Instead, the examiner diagnosed the Veteran has having an unspecified anxiety disorder, an unspecified depressive disorder, and an unspecified opioid use disorder. According to a May 2009 VA medical record, when the Veteran was attending a mental health group focused on cognitive-behavioral skills for PTSD, the counselor noted that the Veteran had difficulty identifying a distressing thought that he wanted to analyze. At the most recent VA examination of October 2017, the examiner conducted a PTSD screening evaluation and determined that the Veteran's symptoms did not meet the criteria under the DSM for PTSD. Instead, the examiner found that the Veteran had other mental disorders, including recurrent and severe major depressive disorder, anxiety, and opioid use disorder. Having evaluated the evidence, the Board finds that a preponderance of the evidence is against a finding that the Veteran warrants a diagnosis of PTSD or has warranted a diagnosis of PTSD in the claim period. The preponderance of the evidence is against a finding that a diagnosis of PTSD is warranted. The only medical evidence that analyzed the specific criteria of the DSM for the diagnosis found that the Veteran did not meet the criteria, and had not met those criteria. The Board finds that the June 2014 finding that the Veteran had not met the criteria for PTSD, corroborated by the October 2017 VA examination findings, are the most persuasive evidence in this case. Those examiners considered the previous records listing PTSD as an issue and found that the criteria were not met, and in the case of the June 2014 examination, that they had never been met. In the absence of proof of the presence of the disability for which service connection is claimed, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992). As the specific diagnostic criteria for PTSD have not been met, the claim for service connection for PTSD must be denied. 38 U.S.C. § 5107(b) (2012); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Depression and Anxiety The Veteran has a current diagnosis of depression and has been diagnosed with anxiety. However, the Board finds that the preponderance of the evidence does not establish that it was caused by or incurred in service. Specifically, the evidence of record, including the Veteran's statements, is contradictory as to what caused the depression anxiety and depression. However, the preponderance of the evidence attributes the current mental disorder to the death of the Veteran's sons long after service. The service medical records reveal that the Veteran was hospitalized at Fort Polk, Louisiana in January 1970 for observation due to an unspecified psychiatric complaint. However, there is no evidence that the Veteran complained of any psychiatric problems, received psychiatric treatment, or reported any sexual assault while in service after that single event. His service personnel records show that at separation his health was normal and he received an honorable discharge. In a December 1996 statement submitted in support of the Veteran's claim, Dr. Maussaway reported that the Veteran was being treated for depression and polysubstance abuse. Dr. Maussaway also indicated that the Veteran was first treated for depression in 1991 in Puerto Rico. According to a September 2008 VA psychiatric evaluation, the Veteran was diagnosed has having a depressive disorder due to bereavement. At that evaluation, the Veteran denied a prior history of psychiatric issues or treatment. In addition, October 2008 VA medical records indicate that the Veteran's depression had its onset after his two adult sons died in a motor vehicle accident in August 2007. According to a November 2008 VA medical record, the Veteran claimed that his depression had its onset in 1969 due to an in service sexual assault. However, an April 2015 VA medical record indicates that the Veteran denied any in-service sexual assault. Later medical records do not include references to any in-service stressors. While the Veteran testified at a March 2017 hearing that he was hospitalized for a psychiatric disorder after he was sexually assaulted while training at Fort Polk, Louisiana, and that he became depressed after training, his testimony is vague. According to the Veteran's August 2017 statement in support of his claim, the Veteran asserted in-service sexual assault by another male soldier in March 1970. However, he only expressed vague feelings of guilt and shame. He admitted that he did not tell anyone about incident. All the Veteran remembers is waking up in straight jacket in a military hospital. Although additional records related to the Veteran's claim of an in-service sexual assault were requested, on remand no additional records could be identified. An October 2017 VA examination diagnosed depressive disorder and anxiety. The examiner found that the diagnosed mental disorder was less likely than not (less than 50 percent probability) related to service or a reported personal assault during service. The examiner noted that VA treatment records identified the death of the Veteran's sons as the precursor for the recent symptoms of depression and anxiety. The examiner also opined that there was no evidence to suggest that the Veteran exhibited symptoms of psychosis within one year following separation from service. The Board acknowledges that the Veteran asserts that he has depression and PTSD related to an in-service stressor. However, the Board finds that the Veteran is not competent to provide the needed medical relationship or medical diagnoses as he lacks the requisite medical training. That determination is solely within the province of trained medical professionals, because it is a medical question requiring training and experience to answer. Jones v. Brown, 7 Vet. App. 134 (1994). As such, the Veteran's lay assertions regarding diagnoses of depression and PTSD have no probative value and are not competent evidence. The Board finds that a preponderance of the evidence is against a finding that any psychiatric disability the Veteran has was the result of an in-service traumatic event. The Board further finds that the preponderance of the evidence is against a finding that any psychosis manifested to a compensable degree within one year following separation from service, or that a current psychosis is shown. Accordingly, the Board finds that entitlement to service connection for a psychiatric disability, to include depression, anxiety, and PTSD, is not warranted. The criteria for entitlement to service connection for the claimed disabilities have not been established. Accordingly, the appeal is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2016). ORDER Entitlement to service connection for a psychiatric disability, to include depression and PTSD, is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs