Citation Nr: 1819601 Decision Date: 04/02/18 Archive Date: 04/12/18 DOCKET NO. 14-13 922 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: James T. Curfman, Agent WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD P. Yoffe, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1966 to March 1968. The matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified at a Board hearing before a Veterans Law Judge in March 2016. A transcript of the hearing has been associated with the record. The Board remanded the claim in May 2016 and the claim returns to the Board. FINDINGS OF FACT 1. The most accurate mental health diagnoses during the appeal period show that the Veteran does not have PTSD. 2. A non-PTSD acquired psychiatric disorder was not manifest during service and is not attributable to service. CONCLUSION OF LAW An acquired psychiatric disorder, to include PTSD, was not incurred in or aggravated by service. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Compliance with Prior Remand The Board remanded the case in May 2016 in order to obtain new VA records, for the U.S. Army and Joint Services Records Research Center (JSRRC) to corroborate the Veteran's stressor, to obtain records from the Social Security Administration (SSA), and to obtain a new VA examination with medical opinion regarding any acquired psychiatric disability. The SSA National Records Center stated all records were destroyed. All the other actions were accomplished. For these reasons, the Board's prior remand instructions have been substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2017). The Veteran and his representative have not raised any argument(s) with respect to the adequacy of notice and assistance. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). With respect to the March 2016 Board hearing, the undersigned VLJ clarified the issues on appeal, identified potential evidentiary deficits, and clarified the type of evidence that would support the Veteran's claim. These actions complied with any duties owed during a hearing. 38 C.F.R. § 3.103 Therefore, the appeal may be considered on the merits. Service Connection Service connection may be established for disability resulting from personal injury or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. § 1110 (2012). To establish a right to compensation for a present disability, a Veteran must show: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303(a); see also Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); 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 or injury was incurred in service. 38 C.F.R. § 3.303(d). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. 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 facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (providing that a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). For a medical opinion (i.e., medical evidence) to be given weight, it must be: (1) based upon 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-Rodriquez v. Peake, 22 Vet. App. 295, 302 (2008). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). PTSD Initially we note that the Veteran was not in combat and the provisions of 38 U.S.C.A. § 1154(b) are not applicable. Any assertion that he was in combat is inconsistent with the service records and is not credible. The Veteran claims he has PTSD caused by an incident while in South Korea involving North Korean infiltration across the Korean Demilitarized Zone (DMZ), near where was stationed. More specifically, he alleged guarding a bridge with an unloaded weapon, and that there was combat occurring while he was stationed near the DMZ, including North Korean casualties. 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). The main issue here is whether the Veteran has PTSD. The Veteran's VA treatment records report PTSD symptoms starting in July 2005 and other psychiatric treatments since around the year 2000. See, e.g., September 2012 VA examination ("[P]sychiatric treatment intermittently in the past 11 years."). For the first several years of VA treatment, the Veteran had a variety of VA assessments and screens for PTSD, including two PTSD assessments in March 2008 by Dr K. K. and November 2009 by Dr. I. S., all of which ruled out PTSD. The Veteran started attending PTSD group therapy sessions in December 2009. There is an assessment of PTSD for the first time in January 2010. It is not clear on what this diagnosis is based. The first assessment of PTSD with an explanation for the diagnosis is by a social worker in December 2012, which states "[the Veteran was] stationed on the DMZ and saw action which is the basis of his PTSD; [the Veteran] states: 'infiltrators came across the line often, you always had to be on alert cause you would never know when.'" Additional VA treatment records note "nightmares" and "occ[asional] flashbacks" and anxiety caused by thinking about service and that the Veteran reported "trouble with staying [a]sleep, with concentration and memory, [but] no problems with appetite, anger[,] or irritability. No racing thoughts or feeling hyper, no strange or bizarre experiences." See, e.g., March 2012 VA mental health physician's note. Other VA treatment notes from a clinical social worker report the Veteran assessed PTSD in 2012 with symptoms of anxious mood, intrusive memories, and nightmares. A VA doctor's notes from 2012 and 2013 also report assessment of PTSD with symptoms of nightmares related to service in Korea, intrusive memories, sporadic reports of flashbacks, issues with sleep, up-and-down mood, depression, and anxious thinking. The Veteran's "flashbacks" are noted off-and-on in VA treatment records in 2013 and 2014. Dr. P. D., a VA doctor, started treating the Veteran in March 2014. He first noted symptoms of anxiety and residual and situational depression; although he stated that the Veteran had "PTSD" "based on criteria from DSM-5." Symptoms in treatment were noted as "occasional nightmares r/t his military experiences in Korea and that he thinks a lot about[,] it which bother[s] him" and "distress from PTSD symptoms." When Dr. P. D. was asked in June 2014 by the Veteran to provide an opinion regarding PTSD, his notes were: Per last note as reported by [the Veteran]: He was in Korea from 1966-68, and faced firefights, and guarding the bridge without ammunition in the combat zone and mentioned having recurrent intrusive distressing memories of those experiences along with feeling on guard, having flashbacks, occasional nightmares, loud noises making him hypervigilant, having hard time trusting people, avoiding crowds, and losing interest in things since he came back from Korea. The rest of Dr. P. D.'s treatment notes report that the Veteran continued to have symptoms of depression and anxiety and "residual PTSD," but he was not interested in psychotherapy. He continued to report symptoms of hypervigilance, discomfort being around people, and nightmares. Dr. P. D. referred the Veteran to licensed clinical social worker in 2014. The social worker reported in October 2014 that the Veteran's primary symptoms were nightmares in which he sees himself in a coffin and being in combat and wounded by shrapnel, but "he reports he was never involved in direct combat and his dreams are non-historical." She further stated that: Based on his self[-]reports he does not meet [the] criteria for PTSD. I noticed that Dr. [K. K.] completed a PTSD assessment in 2008 and based on his self-reports and review of the records also indicated he did not meet diagnostic criteria for PTSD. He does endorse symptoms for MDD and possibly social anxiety however did not have enough time today to fully assess his anxiety symptoms. (Internal spelling corrected). Diagnosis from this social worker was only major depressive disorder. Additional treatment records from Dr. D. P. from 2015 and 2016 continue to note PTSD, although it was under control. A request for stressor verification was made to JSRRC. The responding February 2017 memorandum noted some evidence that the Veteran's artillery unit used a nearby island as a target range and that this was near an area infiltrated by North Koreans, but stated there was no evidence that supported the Veteran's allegation of a stressful incident while in Korea. Turning to the VA examinations and opinions, the Veteran's first examination occurred in July 2012 with an addendum examination in October 2012. The examining psychiatrist, Dr. S.A. reviewed the medical history and the claims folder. The examiner diagnosed the Veteran with anxiety disorder NOS, depressive disorder NOS, and a history of amphetamine and alcohol abuse and dependency. There was no diagnosis of PTSD. The examiner noted the Veteran's various statements regarding guarding a bridge in Korea and North Korean infiltration of the border area, but stated the Veteran had no knowledge or fear of the North Korean infiltration at the time it occurred, nor any mention of being in or near combat. The Veteran reported a variety of symptoms similar to the VA treatment records (anxiety, severe depression, and sleep problems), as well panic attacks, and occasional suicidal thoughts. The examiner also noted the Veteran rated himself as currently severely depressed (1 or 2 on a 1-10 scale), but appeared to be in very good spirits. The examiner noted the Veteran's family, marital, legal, and financial difficulties caused his depression, anxiety disorders, and substance abuse. She reported that "[o]verall, there is no medical evidence on which to base a connection between his psychiatric problems and his military service." The examiner noted that the substance abuse could "possible" cause anxiety and depression and that the Veteran was not treated for any mental health problems until 2001, after a variety of difficulties in life related to money issues, problems with drugs, loss of a job, and possible involvement with law enforcement due to substance abuse. He first sought mental health treatment at the VA after the death of his son, which was the primary reason he sought treatment. The examiner further reported the Veteran stated he had "bad dreams" several months prior to the examination and these were about his service in Korea, but did not describe the dreams, had no noted distress, and changed topics when questioned. He also noted he had flashbacks, but "he did not describe such when this was followed up. There is no persistent re-experiencing of a prior traumatic experience reported in detailed questioning, and no persistent avoidant behaviors connected to such." Regarding the Veteran's history of "PTSD," the examiner noted that: [The Veteran returned to a VA mental health facility i]n 2012 again asking for an exam for PTSD. Although the social worker (therapist) working with him gave that diagnosis, the records do not support this diagnosis per DSM-IV criteria. There is no medical evidence of record, or after very careful and detailed examination of the [V]eteran, to support this diagnosis, nor is there evidence to support a nexus of his anxiety disorder to his experiences during military service. The examiner stated that the Veteran's anxiety disorder, depressive disorder, and polysubstance abuse were not at least as likely as not (50 percent or greater probability) incurred or caused by his claimed stressors while in Korea. The Veteran had an additional examination in February 2017 with an original opinion dated February 2017 (signed by a psychologist in April 2017), and an addendum opinion by a psychiatrist regarding other acquired psychiatric disorders also dated in February 2017 (signed by Dr. S.A. in May 2017). On examination in February 2017, the psychologist reported the Veteran did not have a diagnosis of PTSD that conformed to the DSM-5. An anxiety disorder, NOS, was diagnosed. The examiner reviewed the file and stated the Veteran's history. The examiner stated the Veteran was stationed near DMZ during North Korean infiltration, but that the stressor did not meet the Criterion A ("is it adequate to support the diagnosis of PTSD). The Veteran's symptoms were again noted, including depressed mood, anxiety, suspiciousness, sleep impairment, panic attacks, memory loss, impaired abstract thinking, disturbances of mood and motivation, and persistent delusion or hallucinations. The Veteran also reported some auditory hallucination (voices and door knocking). The Veteran claimed had PTSD had been shown by previous VA testing. The examiner reported "testing done by Dr. [S. A.] indicate that he does not have PTSD and more likely has generalized anxiety disorder." Further, quoting Dr. S. A., the examiner stated "it appears that the patient tended to over-endorse all items . . . could fit with someone who was feeling a need for more clinical attention or who tends to endorse most symptoms somewhat indiscriminately." Other evidence of record to note is a letter from the Veteran's VA doctor, Dr. P. S., a staff psychiatrist, which stated that the Veteran has PTSD. See May 2016 statement ("I am writing this letter to certify [the Veteran]. . . who has been under my care since March 2014 has a diagnosis of Post-traumatic stress disorder"). With respect to PTSD, as noted above, the first requirement for service connection for PTSD is a medical diagnosis of the disorder. 38 C.F.R. § 3.304(f). The evidence of record included conflicting evidence as to whether the Veteran has a diagnosis of PTSD in VA treatment records. The Veteran had several assessments noting he did not have PTSD, followed by treatment and references noting a diagnosis of PTSD in notes recounting group therapy sessions and treatment from two doctors, a social worker, and other staff. Another VA treatment note by a licensed clinical social worker noted that, in fact, the Veteran did not meet the criteria for PTSD, and, according to her, apparently never had a proper assessment of PTSD. Turning to the VA examiners, the various examiners specifically stated that the Veteran did not meet the criteria for a diagnosis of PTSD. The examiners were mental health professionals (a psychologist and a psychiatrist) and, as result, the VA examiners had the relevant expertise to give opinions on this matter. The VA examiner reviewed the Veteran's file and all available electronic records, including medical records. The examiners elicited and described the Veteran's symptoms in detail, described the specific diagnostic criteria set forth in the DSM, and provided a reasoned analysis. A medical opinion will be considered probative if it includes clear conclusions and supporting data with a reasoned analysis connecting the data and conclusions. A medical opinion that is factually accurate, fully articulated, and based on sound reasoning carries significant weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The examinations here meet these criteria. By contrast, the other medical evidence of record indicating a diagnosis of PTSD, to include VA treatment records, did not indicate that the VA treatment providers had the opportunity to review pertinent evidence. According to the examiners and a VA social worker, the Veteran was never properly diagnosed with PTSD. His treating VA doctor provided one conclusory statement stating the Veteran had PTSD. This statement does not mention how or when or on what basis PTSD was diagnosed. It seems this statement is simply an apparent transcript of what the Veteran stated happened to him in service. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995) (a bare transcription of lay history is not transformed into competent medical evidence merely because the transcriber happens to be a medical professional). The opinion also incorrectly states that the Veteran was in "firefights" and guarded a bridge "in the combat zone." The JSRRC could not find any evidence to support the stressor. The service records do not contain any information to substantiate these statements. While the VA doctor's opinion has been considered, it is more probative than the examiners' opinion on this matter. The other VA treatment records merely provided a diagnosis without proper assessment, according to the other medical professionals. Review of the record shows that the Veteran self-reported that he had PTSD, as the treatment records do not provide rationales or facts explaining the diagnoses provided. They are not probative on the matter. Therefore, the most probative evidence supports a finding that the Veteran does not have PTSD within the meaning of the law. Accordingly, the most probative evidence of record indicated that the Veteran does not have the disability for which service connection is sought (PTSD), there can be no valid claim for service connection for PTSD. The Board concludes that the Veteran has not been properly diagnosed with PTSD. As such, the criteria for entitlement for service connection for PTSD have not been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.304(f). Other Acquired Psychiatric Disorder The Veteran has not contended that another acquired psychiatric disorder is due to service, instead claiming he has PTSD, which was caused by events in service as outlined above. The Veteran has had several other diagnoses, such as depression and anxiety disorders, in the VA examinations and VA treatment records. The Veteran's service medical records are negative for treatment for any psychiatric disability. At separation, his undated examination was blank, noting neither normal nor abnormal for any area, containing only audiometer results and some physical measurements (height, weight, etc.). On his February 1968 Report of Medical History, the Veteran denied nervous trouble, trouble sleeping, depression or excessive worry, as well as frequent and terrifying nightmares. There is no evidence associating an acquired psychiatric disability with service. The first reported treatment for acquired psychiatric disorder was around the year 2000. In the 2017 VA opinion regarding a relationship with any acquired psychiatric disability and service, a psychiatrist noted that the Veteran had anxiety and depression. The examiner reviewed the Veteran's file and restated the medical history. The examiner opined that the anxiety disorder and depression were less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated, after reviewing the treatment records to date, along with prior VA examinations including the February 2017 examination, that there is no medical evidence on which to base a connection between the acquired psychiatric disability and military service. In the February 2017 examination, the examiner noted they were no mental health issues in service treatment records and there is no medical evidence to support that depression or anxiety had onset earlier around 2000, with substance abuse treatment, loss of employment, and legal issues leading up to that time. The examiner stated treatment records indicate that the Veteran had mainly reported depression and anxiety, caused by family issues, unemployment, and financial difficulties. The examiner noted that the evidence does not show an acquired psychiatric disability was related to service. The Board acknowledges that lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability subject or symptoms subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Layno v. Brown, 6 Vet. App. 465, 470 (1994). To the extant the Veteran argues he has a non-PTSD disability due to service, any such statements would be not credible. He stated when first sought treatment that symptoms started several decades after service. Contentions to the effect that he had symptoms since service therefore lack credibility and do not outweigh the probative medical opinion. As the examiner was a medical professional who specialize in mental health, and was able to review the record, including the wide variety of diagnoses given in treatment, the Board finds the examiner gave the most probative diagnosis and opinion of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). There are no other opinions or statements to consider. Therefore, the most probative evidence establishes that another acquired psychiatric disorder was not manifest during service and that the current pathology is unrelated to service. On his Report of Medical History, the Veteran denied a history of the relevant symptoms. There is no competent evidence of acquired psychiatric disorders until many years post service. For the foregoing reasons, the preponderance of the evidence is against the claim for service connection for an acquired psychiatric disorder, including PTSD. The benefit-of-the-doubt doctrine is therefore not for application, and the claim for service connection for an acquired psychiatric disorder must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs