Citation Nr: 1808922 Decision Date: 02/13/18 Archive Date: 02/23/18 DOCKET NO. 13-18 291 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, including posttraumatic stress disorder (PTSD), depression, and major depressive disorder (MDD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from January 1971 to May 1974. This case comes to the Board of Veterans' Appeals (Board) on appeal of a February 2011 rating decision of the St. Paul, Minnesota, Regional Office (RO) of the Department of Veterans Affairs (VA). In June 2015, a videoconference Board hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran's claims file. The case was remanded by the Board in September 2015 for further development of the evidence. This has been accomplished and the case has been returned for further appellate consideration. FINDINGS OF FACT 1. The noncombat stressor, upon which the Veteran's diagnosis of PTSD has been medically based, has not been verified and has been certified as being unverifiable. 2. An acquired psychiatric disorder, including MDD and depression, was not evident during service or until many years thereafter and is not shown to have been caused by any in-service event. CONCLUSION OF LAW An acquired psychiatric disorder, including PTSD, MDD, and depression, was neither incurred in nor aggravated by service. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA's duty to notify was satisfied by letters dated in November 2010 and April 2012. See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). With regard to the duty to assist, the Veteran's service treatment records (STRs) and pertinent post-service treatment records, including medical record utilized in a disability determination by the Social Security Administration, have been secured. The Veteran was afforded a VA medical examination, most recently in December 2015, pursuant to remand by the Board. The Board finds that the opinions obtained are adequate. The opinions were provided by a qualified medical professional and were predicated on a full reading of all available records. The examiner also provided a detailed rationale for the opinions rendered. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Neither the Veteran nor the representative has challenged the adequacy of the examination obtained. Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of his opinion). Accordingly, the Board finds that VA's duty to assist, including with respect to obtaining a VA examination or opinion, has been met. 38 C.F.R. § 3.159(c)(4) (2017). 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; 38 C.F.R. § 3.303(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition, as identified in 38 C.F.R. § 3.309(a), noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). 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 order to prevail on the issue of service connection, there must be medical evidence of current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1990). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1990); 38 C.F.R. § 3.303(a). The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence where appropriate and the analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017). When all of the evidence is assembled, VA 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Service connection for PTSD requires that three elements must be present according to VA regulations: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) credible supporting evidence that the claimed inservice stressor occurred; and (3) a link, established by medical evidence, between the current symptoms and the claimed inservice stressor. 38 C.F.R. § 3.304(f) (2017). See Cohen v. Brown, 10 Vet. App. 128, 138 (1997). The diagnosis of a mental disorder must conform to the Diagnostic and Statistical Manual of Mental Disorders (5th ed. 2013) (DSM-5), and be supported by the findings of a medical examiner. 38 C.F.R. § 4.125(a). In adjudicating a claim for service connection for PTSD, VA is required to evaluate 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 the service member served, the service member's military records, and all pertinent medical and lay evidence. 38 U.S.C. § 1154(a) (2012); 38 C.F.R. §§ 3.303(a),3.304. The evidence necessary to establish the occurrence of a recognizable stressor during service to support a diagnosis of PTSD will vary depending upon whether the service member engaged in "combat with the enemy." If the evidence establishes that the service member engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, (and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the appellant's service), the service member's lay testimony alone may establish the occurrence of the claimed in-service stressor. See 38 C.F.R. § 3.304(d); see also 38 U.S.C. § 1154(b); VAOPGCPREC 12-99. VA General Counsel has held that "[t]he ordinary meaning of the phrase 'engaged in combat with the enemy,' as used in 38 U.S.C. § 1154(b), requires that a Veteran have participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality." The determination whether evidence establishes that a service member engaged in combat with the enemy is resolved on a case-by-case basis with evaluation of all pertinent evidence and assessment of the credibility, probative value, and relative weight of the evidence. VAOGCPREC 12-99; 65 Fed. Reg. 6,256 -58 (Feb. 8, 2000). Effective July 13, 2010, VA amended 38 C.F.R. § 3.304(f) by liberalizing, in certain circumstances, the evidentiary standards for establishing the occurrence of an in-service stressor for non-combat veterans. See 75 Fed. Reg. 39,843-39,852 (effective July 13, 2010). Previously, VA was required to undertake extensive development to determine whether a non-combat veteran actually experienced the claimed in-service stressor and lay testimony, by itself, was not sufficient to establish the occurrence of the alleged stressor. Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). Instead, credible supporting evidence of a corroborated in-service stressor was required. Credible supporting evidence was not limited to service department records, but could be from any source. See YR v. West, 11 Vet. App. 393, 397 (1998); see also Moreau v. Brown, 9 Vet. App. 389, 395 (1996). Further, credible supporting evidence of the occurrence of an in-service stressor could not consist solely of after-the-fact medical nexus evidence. See Moreau, 9 Vet. App. at 396. The amended version of 38 C.F.R. § 3.304(f)(3) eliminated the need for stressor corroboration in circumstances in which the service member's claimed in-service stressor is related to "fear of hostile military or terrorist activity." Specifically, the amended version of 38 C.F.R. § 3.304(f)(3) states: If a stressor claimed by a Veteran is related to the veteran's 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 the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. See 38 C.F.R. § 3.304 (f)(3). Lay statements may support a claim for service connection by establishing the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), they are not competent to provide opinions on medical issues that fall outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d 1372. Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). PTSD The Veteran contends that he has an acquired psychiatric disorder, specifically PTSD, that had its onset during service. He has identified several stressful events that occurred while he was stationed on the island of Okinawa. The first involved and altercation with a waitress who became angry with him when he would not buy her a drink and threw a drink in his face. Afterwards, he was advised by the shore patrol that he would be killed by the local residents if he did not leave the bar. A second stressor involved an incident when he and his brother had a disagreement over the price of a CD that his brother had bought. They were accosted by the owner of the shop, who followed them with a crowd of local residents as they returned to base. They were advised by the guard at the gate to enter the base before they were killed. (The Veteran's brother submitted a statement that verified this incident.) The third stressor involved another incident in a local bar that resulted in him and a companion being chased by a man who wielded a sword. He cut the Veteran's companion in the head, requiring stitches. The Board initially notes that none of the stressors that the Veteran contends caused his PTSD are the result of combat with the enemy or related to the Veteran's fear of hostile military or terrorist activity. As such, the Veteran's lay testimony, by itself, will not be enough to establish the occurrence of the alleged stressors and they must be verified. Zarycki v. Brown, 6 Vet.App. 91 (1993). In a June 2011 memorandum from the coordinator of the Joint Services Records Research Center (JSRRC), it was found that the information required to corroborate the stressful events described by the Veteran was insufficient to allow for meaningful research of Army or National Archives and Records Administration records. The Veteran's service records, service personnel records, and records from the Kadena Air Base in Japan, where the Veteran was stationed, were reviewed. It was concluded that continued efforts to research the Veteran's stressor information would not likely provide any verifiable supporting data. VA examinations dated in January 2011 and December 2015 indicate that the Veteran did not meet the diagnostic criteria for PTSD. Rather, the Veteran was diagnosed with depressive disorder, work related in January 2011; and MDD, not related to service in December 2015. Similarly, a private psychological assessment dated in May 2013 found that the Veteran did not meet the diagnostic criteria for a diagnosis of PTSD. The diagnosis at that time was anxiety disorder, not otherwise specified (NOS). Review of VA outpatient treatment records through April 2017, show assessments that include PTSD. This assessment is shown in the treatment records to be based upon the stressful event in which the Veteran and his friend were chased by a man who wielded a sword, injuring his friend. As noted above, this is a noncombat stressor that has not been verified and a PTSD diagnosis must be established by medical evidence between the current symptoms and the verified inservice stressor. See Cohen 10 Vet. App. at 128. In this case, as the only stressor that has been noted to be a cause of the PTSD has not been verified. As such, there is no confirmed diagnosis of PTSD based upon a verified noncombat stressor and service connection for PTSD may not be established. Acquired Psychiatric Disorder, Including MDD and Depression In addition, a claim of service connection for a mental disorder may encompass claims for service connection of any mental disorder that may reasonably be encompassed by several factors, including the claimant's description of the claim, the symptoms the claimant describes and the information the claimant submits or that the Secretary obtains in support of the claim. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Accordingly, the Board has taken an expansive view of the Veteran's claim pursuant to Clemons. Review of the record shows that the Veteran has been assessed as having several acquired psychiatric disorders including MDD and depression. Review of the Veteran's STRs shows no complaint or manifestation of any psychiatric disorder. On examination for separation from service the Veteran did not report having or having had frequent trouble sleeping, depression, or nervous trouble of any sort. Psychiatric clinical evaluation at that time was normal. A February 2007 VA outpatient treatment record shows a diagnosis of adjustment disorder with depression and irritable mood. Subsequent treatment records, including a May 2013 private psychological assessment, continue to show diagnoses of MDD; mood disorder, NOS; and an anxiety disorder. The May 2013 private assessment indicated that the anxiety disorder that was diagnosed could as likely as not be seen as related to the Veteran's stressful incidents in service. As noted, an examination was conducted by VA in December 2015 at which time the diagnosis was MDD that was not related to service. In a January 2016 addendum, the examiner indicated that the Veteran's symptoms of depression were the result of maladaptive personalty traits that interfered with social relationships and an ability to cope with stressors. Therefore, there was no relationship with service many years earlier. It is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). 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. See Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993). When reviewing such medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). However, the Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). 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. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Sklar v. Brown, 5 Vet. App. 140, 146 (1993); Guerrieri, 4 Vet. App. at 470-71. While the Board may not ignore a medical opinion, it is certainly free to discount the relevance of a physician's statement, as it has done in this case. See Sanden v. Derwinski, 2 Vet. App. 97 (1992). In this case, the Board does not find that the preponderance of the evidence supports the establishment of service connection for any of the psychiatric disorders that have been diagnosed in the record. While the private psychologist indicated that the anxiety disorder that was diagnosed could be seen as secondary to the life threatening situations described by the Veteran, the Board finds this opinion to be speculative at best, of little evidentiary value, and amounts to what in essence is "non-evidence" of an etiological relationship to a service-connected disability. See Perman v. Brown, 5 Vet. App. 237, 241 (1993); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992); Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Obert v. Brown, 5 Vet. App. 30 (1993) (a medical opinion expressed in terms of "may," also implies "may or may not" and is too speculative to establish a plausible claim.) The Board's finding is further supported by the lack of post-service evidence showing psychiatric problems until 2007, nearly 35 years after discharge from service. Normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board where it found that veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability). Thus, the lack of any evidence of psychiatric complaints, symptoms, or findings for over three decades between the period of active service and his first psychiatric complaints is itself evidence which tends to show that the disabilities did not have their onset in service or for years thereafter. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for an acquired psychiatric disorder, including PTSD, MDD or depression, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for an acquired psychiatric disorder, including PTSD, depression, and MDD, is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs