Citation Nr: 1808583	
Decision Date: 02/09/18    Archive Date: 02/20/18

DOCKET NO.  06-36 948	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boise, Idaho


THE ISSUES

1.  Entitlement to service connection for posttraumatic stress disorder (PTSD).

2.  Entitlement to a rating in excess of 10 percent for a right knee disability.

3.  Entitlement to a total rating due to individual unemployability (TDIU). 
 

REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Veteran



ATTORNEY FOR THE BOARD

J.L. Ivey, Associate Counsel 


INTRODUCTION

The Veteran served on active duty in the United States Air Force from December 1968 to December 1972 including service in the Republic of Vietnam.  

This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, and a November 2005 rating decision of the VA RO in Phoenix, Arizona.  The Veteran later relocated to the jurisdiction of the RO in Boise, Idaho, where he testified before the undersigned in August 2009.  

In February 2011, the Board remanded the claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, as well as the claim for a higher initial disability rating for a right knee disability, for additional development.  In an April 2011 rating decision, the Appeals Management Center granted service connection for major depressive disorder, thus satisfying the appeal for the claim for service connection for an acquired psychiatric disorder other than PTSD.  However, as the Veteran has specifically claimed entitlement to service connection for PTSD, that issue remains on appeal along with the claim for a higher initial disability rating for the right knee disability.  See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009)(the scope of a mental health disability claim includes any mental disorder that may reasonably be encompassed by the claimants description of the claim, reported symptoms, and other information of record).

In November 2012 and May 2017, the Board remanded the claims on appeal.  I 

In the November 2017 Appellate Brief, the Veteran's representative suggested that the Veteran might be entitled to a higher rating for his service-connected depressive disorder and requested that the Board remand the issue for additional development.  As noted above, an April 2011 rating decision granted service connection for major depressive disorder and assigned a 30 percent rating; the Veteran did not file a timely notice of disagreement with regard to the rating assigned.  Thus, the Board does not have jurisdiction over this issue.  If an increased rating is now requested, the Veteran is encouraged to file an increased rating claim on the designated form. 

The issues of entitlement to a rating in excess of 10 percent for a right knee disability and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

The preponderance of the evidence reflects the Veteran does not have a current diagnosis of PTSD under the DSM criteria.


CONCLUSION OF LAW

The criteria for entitlement to service connection for PTSD are not met.  38 U.S.C. §§ 1110, 1154(a), 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304(f) (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Principles of Service Connection

Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table decision). 

Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (under the criteria of DSM); 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).  

Facts and Analysis

The Veteran asserts that he has PTSD due to active duty.  Specifically, the Veteran's dominant "PTSD stressor" is that he developed a romantic relationship with a woman while he was stationed in Vietnam; the woman became pregnant and he left her and the unborn child there when he returned to the United States.  Subsequently, the Veteran married and fathered several children with birth defects.  Records suggest that the Veteran believes that these birth defects may be related to herbicide agent exposure in Vietnam.  See, e.g., February 2011 VA psychiatric examination; December 2015 VA treatment note.  

It is very clear from the evidentiary record that these circumstances were and continue to be very distressing to the Veteran.  The Board emphasizes that he is currently service-connected for major depressive disorder as a result of these circumstances.  However, the preponderance of the evidence shows no current diagnosis of PTSD.

The Veteran received a mental health evaluation through the Social Security Administration (SSA) in June 2006 after he applied for disability benefits.  The provider, a licensed psychologist, interviewed the Veteran and reviewed his SSA claims file, which included copious VA and private treatment records.  The resultant report reflects a comprehensive examination was administered and reflects the following Axis I diagnoses: anxiety disorder, NOS, with posttraumatic stress features; and major depressive disorder, single episode, severe, without psychotic features with considerable agitation. 

The Veteran had a VA psychiatric examination by a clinical psychologist in February 2011.  The examiner reviewed all the evidence of record and interviewed the Veteran at length, documenting a full medical history.  The examiner ultimately stated that the Veteran did not meet the criteria for a diagnosis of PTSD, but instead had major depressive disorder and significant, pervasive feelings of guilt related to the circumstances noted above. 

June and December 2012 private treatment notes from E.L., Ph.D. reflect a current diagnosis of severe, chronic PTSD.  No mental status examination is contained in these notes, and there is no discussion of how any of the DSM diagnostic criteria for a diagnosis of PTSD are met.  E.L. wrote a letter for the Veteran in support of his claim.  The letter, dated February 2013, reflects that the Veteran suffers from "guilt and regret" about leaving a pregnant girlfriend behind in Vietnam.  E.L. opined that the Veteran was traumatized by this as well as his daughters' subsequent medical problems, which he blamed on himself (either through the mechanism of herbicide agent exposure or because he was being punished for his actions in Vietnam).  E.L. opined that the Veteran's traumas and worries related to herbicide agent exposure met the criteria for a PTSD diagnosis.  

The Veteran was afforded another VA mental health examination in April 2016.  The examiner reviewed the claims file and interviewed the Veteran personally.  The examiner opined that the Veteran did not meet the diagnostic criteria for PTSD under the DSM but he did meet the criteria for depressive disorder.  The Veteran discussed his primary stressor of being wracked with guilt for abandoning his Vietnamese girlfriend when was transferred back to the United States.  The examiner stated that this stressor did not meet the DSM PTSD Criterion A, i.e., it was not adequate to support a diagnosis of PTSD.  

The Board finds that the preponderance of the evidence shows no current diagnosis of PTSD.  The Veteran was afforded two VA examinations during the appeal period in which the Veteran's claims file was reviewed, he was interviewed, and a complete medical history was documented.  Both examiners opined the Veteran did not meet the DSM criteria for a PTSD diagnosis.  In addition, a SSA examiner also reviewed his SSA claims file, interviewed the Veteran, and determined he did not meet the diagnostic criteria for a PTSD diagnosis, although the SSA examiner acknowledged that his anxiety was manifested in part by posttraumatic stress features.  Numerous VA treatment records reflect a diagnosis of depressive disorder; none of the VA mental health records prepared by licensed psychologists or psychiatrists reflects a PTSD diagnosis.  The primary evidence of record that does suggest a PTSD diagnosis is from E.L., and this evidence is not adequate under VA regulations.  It does not appear that E.L. reviewed the Veteran's complete file and she did not discuss the DSM criteria for PTSD, explain how the Veteran met each of the required criteria, explain which "stressor" she was utilizing for her diagnosis, or explain how that "stressor" was adequate to support a PTSD diagnosis.  See 38 C.F.R. § 3.304(f); see generally 38 C.F.R. § 4.125(a).  Indeed, the Veteran himself has indicated that he does not have an adequate stressor to support a PTSD diagnosis.  See February 2011 VA examination report (noting that the Veteran does not believe that that leaving his girlfriend was enough of a trauma to qualify for a PTSD diagnosis).

In coming to this conclusion, the Board acknowledges that the Veteran experiences significant mental anguish due to military-related circumstances; however, the Board again emphasizes that he is already service-connected for major depressive disorder based on these circumstances.  As the most probative evidence of record shows that the Veteran does not meet the DSM criteria for a PTSD diagnosis consistent with VA regulations, service connection for this condition is not warranted based on lack of a current diagnosis.  See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ("Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability . . . in the absence of a proof of present disability there can be no claim.").  There is no doubt to be resolved as to this issue.



ORDER

Entitlement to service connection for PTSD is denied.


REMAND

The May 2017 VA knee examiner indicated that the Veteran had "less movement than normal due to ankylosis, adhesions, etc."  However, the Veteran was able to achieve range of motion from 10 to 90 degrees, and the examiner did not provide any response in the section regarding ankylosis.  As a result, this examination report is inadequate in its current form, as whether or not the Veteran has ankylosis is central to the question of the appropriate rating.  On remand, the AOJ is directed to obtain and addendum opinion from the same VA examiner regarding whether or not there is ankylosis of the right knee; if ankylosis is present, the examiner should discuss its nature and severity consistent with the criteria set forth in 38 C.F.R. § 4.71a, Diagnostic Code 5256.  Another VA examination is not required unless the examiner deems one necessary.  As the issue of entitlement to a TDIU is inextricably intertwined with the increased rating claim remanded herein, action on that claim is deferred.  Updated VA treatment notes should also be obtained on remand.  

Accordingly, the case is REMANDED for the following action:

1.  Obtain any outstanding VA treatment notes and associate them with the claims file.

2.  Request an addendum opinion/clarification from the same VA examiner that conducted the May 2017 knee examination.  A new examination is not required unless the examiner deems one necessary.  The examiner must comment as to whether the Veteran's right knee disability is manifested by ankylosis.  If there is ankylosis, the examiner should comment on its nature and severity consistent with the criteria set forth in 38 C.F.R. § 4.71a, DC 5256.  

3.  After completing the above development and any other additional development deemed appropriate, readjudicate the issues on appeal.  

The Veteran has the right to submit additional evidence and argument on the 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. §§ 5109B, 7112 (2012).



______________________________________________
S. BUSH
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs