Citation Nr: 1823045 Decision Date: 04/18/18 Archive Date: 04/25/18 DOCKET NO. 17-10 130 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD T.S.E., Counsel INTRODUCTION The Veteran had active service from September 1960 to October 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which denied a claim for service connection for PTSD. To avoid any prejudice to the Veteran, the Board has recharacterized the issue broadly, as stated on the cover page of this decision. Clemons v. Shinseki, 23 Vet. App. 1 (2009); Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2014). FINDING OF FACT The Veteran does not have an acquired psychiatric disorder, to include PTSD, that is related to his service. CONCLUSION OF LAW An acquired psychiatric disorder, to include PTSD, was not caused by the Veteran's service. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran asserts that service connection is warranted for an acquired psychiatric disorder, to include PTSD. The Veteran argues that while he was in Vietnam, he witnessed stand-off attacks on his base at Da Nang, that on one occasion two 500-pound bombs were exploded in an accident involving South Vietnamese military personnel, and that he saw dead bodies. He further states that during service in Germany, he witnessed a friend and fellow serviceman burn to death in a tent fire. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. See 38 C.F.R. § 3.303(d). In such instances, a grant of service connection is warranted only when, "all of the evidence, including that pertinent to service, establishes that the disease was incurred during service." Id. With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303 (b). 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. Id. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309 (a). See Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013) (holding that the term "chronic disease in 38 C.F.R. § 3.303 (b) is limited to a chronic disease listed at 38 C.F.R. § 3.309 (a)). A grant of service connection under 38 C.F.R. § 3.303 (b) does not require proof of the nexus element; it is presumed. Id. In order to establish service connection for PTSD, the evidence of record must include a medical diagnosis of 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 regulations governing PTSD were amended, effective July 13, 2010. 75 Fed. Reg. 39843-52 (July 13, 2010). Specifically, this amendment eliminates the requirement for corroborating that the claimed in-service stressor occurred if a stressor claimed by a veteran is related to his/her fear of hostile military or terrorist activity, 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. Id. The Veteran's personnel files show that his military occupation specialties were aircrew airborne communications, aircrew airborne communications systems technician, aircrew telecommunication operations supervisor, and telecommunication operations supervisor. His awards include Vietnam Service Medal with six Bronze Service Stars, the Republic of Vietnam Gallantry Cross with Palm and two Oak Leaf Clusters, and the Republic of Vietnam Campaign Medal. He had duty at the Da Nang Air Base between December 1963 and October 1965. This evidence includes a performance report (AF Form 910) covering the period between June 1972 and June 1973, during service in Germany, which notes that he had been involved fighting a tent fire, and that he had organized the men to prevent further damage. The Veteran's service treatment records do not contain any relevant complaints, findings, or diagnoses. They include no fewer than seven examination reports, to include a March 1985 separation examination report, which show that his psychiatric condition was clinically evaluated as normal, or that a psychiatric disorder was not noted. They also include no fewer than five reports of medical history, to include a March 1985 report, which show that he specifically denied having a history of depression or excessive worry, or nervous trouble of any sort. As for the post-service medical evidence, VA progress notes show that between 2005 and 2015, depression and PTSD screens were overwhelmingly, if not entirely, negative. Between 2003 and 2007, there were multiple notations that he did not have anxiety, or that he denied anxiety. A report, dated in January 2016, shows that the Veteran complained of trouble sleeping, and that he had witnessed a tragic event in the winter of 1973, i.e., the death of a friend in a fire during service. He stated that his symptoms had become progressively more prominent in the past several years. The diagnosis was anxiety disorder, unspecified. A VA PTSD disability benefits questionnaire (DBQ), dated in July 2016, shows that the examiner indicated that the Veteran's VA e-folder had been reviewed. The Veteran reported a four-year history of difficulty sleeping, at which time he started taking medications and began having "flashbacks" and "reliving situations." The examiner concluded that the Veteran does not have PTSD. The diagnosis was unspecified anxiety disorder. The examiner concluded that his anxiety cannot be linked specifically to a fear of hostile military of terrorist activity without resort to speculation, and that it is less likely as not that his anxiety was caused by, or a result of, an in-service stressor. The examiner noted that although the Veteran had reported PTSD re-experiencing symptoms, the full diagnostic criteria for PTSD were not met. The Board finds that the claim must be denied. With regard to PTSD, the Board finds that the evidence is insufficient to show that the Veteran currently has PTSD. In fact, there is highly significant medical evidence against such a finding, as noted above. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (under 38 U.S.C. §§ 1110 and 1131, a Veteran must submit proof of a presently existing disability resulting from service in order to merit an award of compensation). In particular, the July 2016 VA DBQ shows that the examiner concluded that the Veteran does not meet the DSM criteria for PTSD. This opinion is considered highly probative, as it is shown to have been based on a review of the Veteran's claims file, and it is accompanied by sufficient explanations and findings. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Neives-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). There is no competent evidence of record to show that the Veteran has PTSD. Accordingly, the Board finds that the preponderance of the evidence is against the claim for PTSD, and that the claim must be denied. With regard to the claim for an acquired psychiatric disorder other than PTSD, the Board finds that the claim must also be denied. The Veteran's service treatment records have been discussed. They do not show an relevant treatment, findings, or diagnoses. The Veteran's psychiatric condition was clinically evaluated as normal upon separation from service in March 1986. Given the foregoing, a chronic condition is not shown during service. See 38 C.F.R. § 3.303 (b). The earliest post-service medical evidence to show that the Veteran has an acquired psychiatric disorder is dated in January 2016. This was approximately 30 years after his active duty service. Furthermore, an anxiety disorder is not among the disorders listed at 38 C.F.R. § 3.309 (a), and the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic. 38 C.F.R. § 3.309 (a); Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013) (holding that the term "chronic disease in 38 C.F.R. § 3.303 (b) is limited to a chronic disease listed at 38 C.F.R. § 3.309 (a)). There is no competent opinion of record in favor of the claim. The only competent opinion is found in the July 2016 VA opinion, and this opinion weighs against the claim. This opinion is considered highly probative, as it is shown to have been based on a review of the Veteran's claims file, and it is accompanied by sufficient explanations and findings. Prejean; Neives-Rodriguez. Accordingly, the Board finds that the preponderance of the evidence is against the claim, and that the claim must be denied. To the extent that the Veteran's representative argues that the claim should be granted because the Veteran participated in combat, the Board first points out that his stressors in Vietnam are conceded. See 38 C.F.R. § 3.304(f). In addition, even assuming arguendo that participation in combat was established, the United States Court of Appeals for Veterans Claims (Court) has held that 38 U.S.C. § 1154 does not alter the fundamental requirements of a diagnosis, and a medical nexus to service. See Brock v. Brown, 10 Vet. App. 155, 162 (1997); Libertine v. Brown, 9 Vet. App. 521 (1996). Therefore, service connection is not warranted on this basis. With regard to the Veteran's own contentions, the issue on appeal is based on the contention that an acquired psychiatric disorder, to include PTSD, is due to service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), to include testimony as to the presence of psychiatric symptoms, the issue of whether or not the Veteran currently has PTSD, and whether or not his currently-diagnosed anxiety disorder had its clinical onset during service, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran's service treatment reports and post-service medical records have been discussed. PTSD is not shown, and there is no competent opinion of record in favor of the claim with regard to his currently-diagnosed anxiety disorder. Given the foregoing, the Board finds that the service treatment reports, and the post-service medical evidence, outweigh the Veteran's contentions to the effect that the claimed disability was caused by the Veteran's service. Accordingly, the Board finds that the preponderance of the evidence is against the claim, and that the claim is denied. Duties to Notify and Assist There is no indication in this record of a failure to notify. See Scott v. McDonald, 789 F.3rd 1375 (Fed. Cir. 2015). Pursuant to the duty to assist, VA must obtain "records of relevant medical treatment or examination" at VA facilities. 38 U.S.C. § 5103A (c)(2). All records pertaining to the condition at issue are presumptively relevant. See Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). In addition, where the Veteran "sufficiently identifies" other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (citing 38 C.F.R. § 3.159 (c)(3)). In this case, the Veteran has not identified any such records, and it appears that all pertinent records have been obtained. The Veteran has been afforded an examination, and an etiological opinion has been obtained. The Veteran was also offered the opportunity to testify at a hearing before the Board, but he declined. Based on the foregoing, the Board finds that the Veteran has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER Service connection for an acquired psychiatric disorder, to include PTSD, is denied. ____________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs