Citation Nr: 1512014	
Decision Date: 03/20/15    Archive Date: 04/01/15

DOCKET NO.  13-10 888	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania


THE ISSUE

Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD).  


REPRESENTATION

Veteran represented by:	New Jersey Department of Military and Veterans' Affairs



ATTORNEY FOR THE BOARD

M. Sorisio, Counsel



INTRODUCTION

The Veteran served on active duty from March 1965 to March 1968, April to September 2001, November 2001 to March 2002, March 2003 to August 2003, November 2003 to September 2004, and October 2004 to January 2005.

This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2012 decision of the Philadelphia, Pennsylvania Department of Veterans Affairs (VA) Regional Office and Insurance Center (RO).  

The Veteran requested a hearing before the Board in his February 2013 VA Form 9, Substantive Appeal.  In correspondence received by the Board in June 2014, he withdrew his request for a Board hearing.


FINDING OF FACT

The Veteran does not have a diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a) or a diagnosis of any other mental disorder during the appeal period.


CONCLUSION OF LAW

Service connection for an acquired psychiatric disorder, to include PTSD, is not warranted.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2014).








REASONS AND BASES FOR FINDING AND CONCLUSION

A.  Notice and Assistance

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159.  The VCAA applies to this appeal.

VA has complied with its duty to notify.  38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b).  The Veteran was issued a VCAA letter in August 2011, which was prior to issuance of the April 2012 decision on appeal.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).  This letter specifically advised him of the evidence needed to substantiate his service connection claim, and outlined his responsibilities and those of VA in obtaining relevant evidence.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  The letter also described in detail how VA assigns disability ratings and effective dates for awards.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-91 (2006).

VA has also complied with its duty to assist.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).  VA has obtained, to the extent possible, all relevant evidence identified by the Veteran and necessary for an equitable resolution of the issues on appeal.  The Veteran appeared for a VA psychiatric examination in August 2011.  The VA examiner reviewed the Veteran's claims file, considered the Veteran's lay statements, and provided a full psychiatric examination of the Veteran.  Therefore, the VA examination report is adequate for evaluation purposes.  See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes).  The Veteran has raised questions regarding the conclusions reached by the examiner, which the Board will discuss further in the below Analysis section.

Accordingly, appellate review may proceed without prejudice to the Veteran with respect to his claim.  See Bernard v. Brown, 4 Vet. App. 384, 394 (1993).


B.  Legal Criteria and Analysis

The Veteran alleges that he has an acquired psychiatric disorder related to stressors he experienced during his service in Vietnam.

Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304.  In order to establish service connection for an acquired psychiatric disorder, generally there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999).

Service connection for PTSD requires (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) [i.e., a diagnosis under the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV)]; (2) a link, established by medical evidence, between current symptoms and a stressor event in service; and (3) credible supporting evidence that the claimed stressor event in service occurred.  38 C.F.R. § 3.304(f).  Regarding the diagnosis of PTSD, an interim final rulemaking recently amended § 4.125(a), effective August 4, 2014, to state that diagnosis of a mental disorder must conform to DSM-5, not DSM-IV.  79 Fed. Reg. 45,093 (Aug. 4, 2014).  However, the applicability date of the rulemaking indicates that the revision is not applicable where a case was certified to or pending before the Board on or before August 4, 2014.  See id. at 45,093.  Since the Veteran's case was pending before the Board on August 4, 2014, DSM-IV is applicable to his case.

Crucial to the award of service connection is the existence of a current disability.  Without it, service connection cannot be granted.  See Brammer v. Derwinski, 3 Vet. App. 233, 225 (1992) (noting that service connection presupposes a current diagnosis of the claimed disability).  Here, the record does not support that the Veteran has a diagnosis of PTSD or any other acquired psychiatric disorder.  

Regarding PTSD, the August 2011 VA examiner concluded that he did not meet the full DSM-IV criteria for such a diagnosis.  The examiner provided a thorough explanation regarding her findings in this regard.  First, the examiner found that the Veteran met criterion A (exposure to a traumatic event) for a diagnosis of PTSD.  Specifically, the Veteran told the examiner that during his service in Vietnam as a personnel clerk he was stationed in Quinn Yan next to a hospital and that he heard patients moaning and screaming from the hospital at night and that he often saw trucks bringing in wounded soldiers.  He also reported being mortared upon when his supply unit was asked to protect and rescue another unit that was under attack in the port near Quinn Yan.  

Additionally, he said he was constantly in intense fear while he was in Vietnam and always carried a weapon to protect himself.  He reported that a friend of his was killed in service and that at the funeral he saw that his friend's head was wrapped in gauze because of a head wound.  The VA examiner concluded the Veteran met criterion A of the DSM-IV criteria for PTSD as he had experienced, witnessed, and been confronted by events that involved actual threatened death or injury or a threat to the physical integrity of himself or others and that his response involved intense fear, helplessness, or horror.  

The examiner also concluded the Veteran met criterion B (persistent reexperiencing of a traumatic event), because he had mild symptoms of reexperiencing traumatic events several times a year.  These symptoms usually occurred in response to certain triggers, such as news of the deaths of soldiers in Iraq and Afghanistan and handling caskets of soldiers when he was stationed at Dover Air Force Base.  The examiner noted his reexperiencing was sporadic and when he did experience intrusive recollections of his Vietnam experiences they did not cause distress in his occupational or social functioning.  

The examiner concluded the Veteran did not meet full criteria for criterion C (persistent avoidance of stimuli associated with trauma and numbing of general responsiveness).  She reported that the Veteran made efforts to avoid conversations about his stressor events and Vietnam and that he did not like talking about Vietnam.  However, she concluded the Veteran did not meet any other criteria in criterion C, which requires the presence of three or more symptoms.  See DSM-IV, at 210 (Am. Psych. Assoc. ed. 1994).  In this regard, she noted that the Veteran reported a good level of interest in outside activities and that he denied any feelings of detachment or estrangement from people and was able to get along with most people.  He had good relationships with his wife and children and denied any foreshortened sense of the future or any emotional numbing.

The examiner further found the Veteran had extremely mild symptoms in criterion D (persistent symptoms of increased arousal).  She noted the Veteran had an exaggerated startle response for loud noises if he was not expecting them.  He also had some hypervigilance in that while he could be in crowds, he did not enjoy being in them, and that he was always aware of his surroundings.  The Veteran reported that anger was not an issue for him and that he did not have difficulty concentrating.  He reported sleeping well and sleeping seven hours a night.

Based on her consideration of the Veteran's symptoms in conjunction with the DSM-IV criteria, the examiner concluded the Veteran did not meet the criteria for a diagnosis of PTSD.  

The examiner also provided the Veteran with a complete mental status examination to determine whether he met the criteria for diagnosis of any other psychiatric disorder.  Based on her evaluation, the examiner further found that the Veteran did not currently meet DSM-IV criteria for any psychiatric disorder.  

In his May 2012 notice of disagreement and February 2013 VA Form 9, Substantive Appeal, the Veteran said there was a contradiction between what the examiner told him on the day of the examination and what VA reported was the examiner's conclusion.  Specifically, he said that the examiner told him:  "You have PTSD, but you are handling it."  He believed that it was contrary to justice and any sense of decency that the examiner would then fill out paperwork reaching a different conclusion.  In his VA Form 9, he indicated that he told the examiner about his experiences in Vietnam, how it caused him issues with sleep, and that his problems were made worse when he was confronted with current news of servicemen coming home dead or disabled.  He believed the examiner confused his examination with someone else she had seen that day.  

The Board has considered the Veteran's contentions; however, the evidence does not support that the examination report is inadequate or that it was completed with a different Veteran in mind.  Although the Board recognizes that there is an inconsistency between what the Veteran reported in his VA Form 9 that he told the examiner about his quality of sleep and what the examiner recorded about his sleep in the August 2011 examination report, this appears to be the only inconsistency in the report.  See Monzingo v. Shinseki, 26 Vet. App. 97, 105-06 (2012) (finding that a VA examination report "must be read as a whole" to determine an examiner's rationale).  The examination report reflects an accurate report of the Veteran's service history as shown in his service personnel records, including his military occupational specialty of personnel clerk in Vietnam, his subsequent service with the Air National Guard, including service at Dover Air Force Base, and his retirement from the Air National Guard in 2005.  See, e.g., DD Forms 214; DA Form 20; October 1986 DD Form 4/2.  

Additionally, the examiner described, as the Veteran noted he had told her in his VA Form 9, how the Veteran's symptoms worsened when he was confronted with news stories about servicemen returning from Iraq and Afghanistan either dead or disabled.  Therefore, the totality of the report and opinion otherwise reflect an accurate knowledge of the evidence included in the claims file and the Veteran's history.  The single inconsistency regarding the Veteran's sleep symptoms does not make the report inadequate or indicate that the examiner was discussing another Veteran's case.

Furthermore, the inconsistency regarding the Veteran's reports about the quality of his sleep relate to criterion D of the DSM-IV criteria for PTSD.  DSM-IV, at 210.  As noted, the examiner indicated that the Veteran met criterion D, but that he had extremely mild symptoms.  Her conclusion that the Veteran did not meet the full criteria for a PTSD diagnosis was not based on her finding that he did not have sleep problems.  Rather, it was based on her finding that he did not meet criterion C for persistent avoidance of stimuli.  The record does not reflect any inconsistency regarding what the examiner reported and what the Veteran has otherwise indicated regarding criterion C.  

The Board regrets that the examiner may have given the Veteran the wrong impression regarding whether he had a mental disorder under DSM-IV.  Mental health professionals making diagnoses "are presumed to know the DSM requirements applicable to their practice and to have taken them into account."  See Cohen v. Brown, 10 Vet. App. 128, 140 (1997).  Here, the August 2011 VA examination report clearly reflects the examiner took into account the specific criteria used to diagnose PTSD under DSM-IV and considered the Veteran's symptoms and mental status examination in determining whether the Veteran met the criteria for any other mental disorder.  

Additionally, the examiner reviewed the Veteran's claims file and considered his lay statements regarding his stressors and symptomatology.  She also provided a thorough rationale regarding her conclusions that the Veteran did not meet the criteria for diagnosis of an acquired psychiatric disorder.  See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (finding that an examination report is adequate where it describes the disability in sufficient detail so the Board can make a fully informed evaluation of the disability).  Therefore, the Board places substantial weight of probative value on the August 2011 VA medical opinion, which is the only competent evidence of record regarding whether the Veteran has a diagnosis of an acquired psychiatric disorder.  See Young v. McDonald, 766 F.3d 1348, 1353 (Fed. Cir. 2014) ("PTSD is not the type of medical condition that lay evidence . . . is competent and sufficient to identify.").  

Therefore, a preponderance of the evidence is against a finding that the Veteran has such a disability.  The Veteran's claim fails based on the absence of competent and credible evidence of a diagnosed mental disorder and it is not necessary to discuss any further elements of the service connection claim.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  The benefit sought on appeal is accordingly denied. 




ORDER

Service connection for an acquired psychiatric disorder is denied.



____________________________________________
MICHAEL MARTIN
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs



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