Citation Nr: 1754224
Decision Date: 11/28/17 Archive Date: 12/07/17

DOCKET NO. 13-00 531A ) DATE
)
)

On appeal from the
Department of Veterans Affairs Regional Office in Huntington, West Virginia

THE ISSUE

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

REPRESENTATION

Veteran represented by: Jan D. Dils, Attorney

WITNESS AT HEARING ON APPEAL

The Veteran (Appellant)

ATTORNEY FOR THE BOARD

Patricia Kingery, Associate Counsel

INTRODUCTION

The Veteran, who is the appellant in this case, had active service from June 1972 to June 1975, and from May 1976 to January 1980.

This appeal comes to the Board of Veterans’ Appeals (Board) from a September 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, which, in pertinent part, denied service connection for PTSD. A claim for service connection for PTSD was received in June 2010.

In June 2015, the Board recharacterized the issue on appeal as listed on the title page to conform with Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). Pursuant to the June 2015 Board remand instructions, the Veteran was afforded a VA examination in March 2017 to assist in determining the nature and etiology of the claimed acquired psychiatric disorder. As discussed below, the Board finds that the March 2017 VA examination report was thorough and adequate and in compliance with the Board’s remand instructions; therefore, there has been substantial compliance with the prior Board remand orders. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting the Board’s duty to “insure [the RO’s] compliance” with the terms of its remand orders); D’Aries v. Peake, 22 Vet. App. 97 (2008).

In April 2015, the Veteran testified at a Board videoconference hearing at the local RO in Huntington, West Virginia, before the undersigned Veterans Law Judge sitting in Washington, DC. A transcript of the hearing is of record.

A June 2017 certification of appeal (on a VA From 8) indicates that the issues of service connection for a sleep disorder, right hand disorder, and alcoholism, and whether new and material evidence has been received to reopen service connection for a back disorder, nerve disorder, and residuals of a gunshot wound to the right forearm were certified to the Board; however, the record indicates that the agency of original jurisdiction (AOJ) is in the process of scheduling these issues for a Board videoconference hearing as per the Veteran’s request. See May 2017 substantive appeal (on a VA Form 9). Accordingly, these issues will be decided in a later Board decision after a Board videoconference hearing is scheduled by the AOJ.

Finally, a February 2017 rating decision granted service connection for residuals of boxer’s fracture to the fifth metacarpal of the right hand and assigned a noncompensable (0 percent) initial disability rating effective January 16, 2013. The Veteran filed a notice of disagreement with respect to the initial disability rating assigned that was received by VA in September 2017. While generally it is the Board’s practice to remand such issues for issuance of a statement of the case pursuant to Manlincon v. West, 12 Vet. App. 238 (1999), in this case it is clear from the claims file that the AOJ is actively developing this appeal prior to issuance of a statement of the case, including scheduling additional VA examinations. As such, the Board finds that remanding this issue to the AOJ would be needlessly redundant.

FINDINGS OF FACT

1. The Veteran does not have, and has not had at any time proximate to or during the course of this appeal, current diagnosed PTSD.

2. The Veteran’s currently diagnosed unspecified depressive disorder has been attributable to alcohol use disorder.

3. Service connection is precluded for disability due to alcohol abuse.

CONCLUSION OF LAW

The criteria for service connection for an acquired psychiatric disorder, to include PTSD and depressive disorder, have not been met. 38 U.S.C. §§ 105(a), 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.1(m), 3.102, 3.159, 3.301, 3.303, 3.304, 4.125 (2017).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159 (2017). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim and of the relative duties of VA and the claimant for procuring that evidence. 38 U.S.C. § 5103(a) (2012); 38 C.F.R. § 3.159(b) (2017). Such notice should also address VA’s practices in assigning disability ratings and effective dates for those ratings. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Notice should be provided to a claimant before the initial unfavorable AOJ decision on a claim. 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), rev’d on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).

In this case, the RO provided notice to the Veteran in June 2010, prior to the initial adjudication of the claim in September 2011. The Veteran was notified of the evidence not of record that was necessary to substantiate the claim, VA and the Veteran’s respective duties for obtaining evidence, and how disability ratings and effective dates are assigned; thus, the Board concludes that VA satisfied its duties to notify the Veteran.

VA satisfied its duty to assist the Veteran in the development of the claim. First, VA satisfied its duty to seek, and assist in the procurement of, relevant records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Specifically, the information and evidence that have been associated with the claims file include service treatment records, service personnel records, VA treatment records, VA examination reports, a copy of the April 2015 Board hearing transcript, and lay statements.

Second, VA satisfied its duty to obtain a medical opinion when required. See 38 U.S.C. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Veteran was provided with VA examinations (the reports of which have been associated with the claims file) in March 2011 and March 2017. The Board finds that the March 2011 and March 2017 VA examination reports, taken together with the other evidence of record, are thorough and adequate and provide a sound basis upon which to base a decision with regard to the issue of service connection for an acquired psychiatric disorder. The VA examiners personally interviewed and examined the Veteran, including eliciting a history, conducted psychiatric testing, and provided opinions with supporting rationale.

The Veteran testified at an April 2015 Board hearing before the undersigned Veterans Law Judge and a transcript is of record. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the U.S. Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In this case, during the Board hearing, the Veterans Law Judge advised the Veteran as to the issue on appeal, what was generally required for service connection, and suggested the importance of submitting a medical nexus opinion relating the current psychiatric symptoms to a current diagnosis and service or the in-service stressor events.

The Veteran presented evidence of symptoms of acquired psychiatric disorders, to include PTSD, and testified as to in-service stressors, onset of the reported symptoms, and symptoms during service. Further, the Veteran was provided VA examinations that provide additional evidence on the question of whether there is a current diagnosis of an acquired psychiatric disorder, to include PTSD, other than alcohol use disorder, and whether any such disorder is related to service. Moreover, neither the Veteran nor the representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) and have not identified any prejudice in the conduct of the Veterans Law Judge. As such, the Board finds that, consistent with Bryant, the Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the claim based on the current record. As VA satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.
§ 5103(a), § 5103A, or 38 C.F.R. § 3.159.

Service Connection for an Acquired Psychiatric Disorder

Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, service connection for a disability requires evidence of: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009).

Service connection for PTSD requires medical evidence establishing a diagnosis of the condition, credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between the current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f) (2017).

The evidence reflects current diagnoses of alcohol use disorder and unspecified depressive disorder, neither of which is not listed as a “chronic disease” under 38 C.F.R. § 3.309(a) (2017); therefore, the presumptive provisions based on “chronic” symptoms in service and “continuous” symptoms since service at
38 C.F.R. § 3.303(b) or manifesting within one year of service separation at
38 C.F.R. § 3.307 (2017) do not apply.

The Veteran essentially contends that the claimed PTSD is related to active service, specifically being below decks during a typhoon off the coast of Vietnam as well as fear associated with delivering shells and powder up to gunners firing into Vietnam. The Veteran reports intense fear that the ship would break apart during the typhoon. See e.g., July 2010 and February 2012 written statements; see also April 2015 Board hearing transcript. The Veteran contends that weeks of working in the magazine below the large onboard guns resulted in tension and “shell shock.” See e.g., December 2014 written statement.

In a November 2014 written statement, the Veteran’s partner reported that the Veteran easily startles and jumps at the slightest noise, which the partner contends is related to the Veteran’s service aboard a ship off the coast of Vietnam. In an April 2015 written statement, the Veteran reported additional stressors of witnessing a friend overdose on drugs during service in Thailand, as well as losing a friend in a plane crash in the Philippines.

First, after a review of all the lay and medical evidence of record, the Board finds that the weight of the evidence is against a finding that the Veteran has current diagnosed PTSD consistent with either the DSM-IV or DSM-5. 38 C.F.R. § 4.125. Although the record reflects that the Veteran reported symptoms consistent with PTSD (see November 2011 VA treatment record), the Board finds that the weight of the evidence is against a finding that the Veteran has a diagnosis of PTSD for VA compensation purposes. See 38 C.F.R. § 3.304(f); see also 38 C.F.R. § 4.125(a) (2014) (stating that the diagnosis of PTSD must comply with the criteria set forth in the Diagnostic and Statistical Manual of Mental Disorders, 4th edition, of the American Psychiatric Association (DSM-IV)); 38 C.F.R. § 4.125(a) (2017) (stating that the diagnosis of PTSD must comply with the criteria set forth in the Diagnostic and Statistical Manual of Mental Disorders, 5th edition, of the American Psychiatric Association (DSM-5)).

A July 2014 VA treatment record notes a negative PTSD screen. The Veteran was afforded VA examinations in March 2011 and March 2017 to assist in determining the nature and etiology of the claimed psychiatric disorder. The March 2011 VA examiner indicated that the Veteran’s stressor relates to being exposed to a natural disaster (typhoon) while being aboard a ship, but opined that the Veteran did not meet the DSM-IV criteria for PTSD. The March 2017 VA examination report notes that, while the Veteran has a stressor that was adequate to support a diagnosis of PTSD (exposure to a typhoon during service), the Veteran did not meet the full DSM-5 criteria for PTSD.

While the record includes VA psychiatric treatment records, they do not demonstrate a current diagnosis of PTSD consistent with the DSM-IV or DSM-5. Service connection may only be granted for a current disability; when a claimed condition is not shown, there may be no grant of service connection. See 38 U.S.C. §§ 1110, 1131; Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability). “In the absence of proof of a present disability there can be no valid claim.” See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). See also McClain v. Nicholson, 21 Vet. App. 319 (2007) (holding that service connection can also be warranted if there was a disability present at any point during the claim period, even if it is not currently present); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (holding that a current disability may include a diagnosis at the time the claim was filed or during its pendency). The weight of the evidence in this case is against finding a PTSD disability at any point during the claim period or a recent diagnosis prior to the filing of the claim for service connection.

To the extent that the Veteran and partner attribute the psychiatric symptoms experienced to a claimed diagnosis of PTSD (see e.g., February 2014 written statement where the Veteran contends that he has PTSD due to “horrific events” during service), the Veteran and partner are competent to report any psychiatric symptoms experienced by the Veteran or observed (witnessed firsthand by the Veteran’s partner); however, neither is competent to diagnose a psychiatric disability because the diagnosis of PTSD requires medical expertise and falls outside the realm of common knowledge of a lay person. Young v. McDonald, 766 F.3d 1348, 1353 (Fed. Cir. 2014) (holding that “PTSD is not the type of medical condition that lay evidence . . . is competent and sufficient to identify”); Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (holding that a claimant without medical expertise cannot be expected to precisely delineate the diagnosis of his mental illness). The Introduction to the DSM-IV specifically provides a “Cautionary Statement” that the “proper use of [the DSM-IV classification criteria] requires specialized clinical training that provides both a body of knowledge and clinical skills,” and that the “purpose of the DSM-IV is to provide clear descriptions of diagnostic categories in order to enable clinicians and investigators to diagnose.” A diagnosis not conforming to DSM-IV or DSM-5 criteria or that does not show the findings on a report that supports the diagnosis is not adequate and requires further substantiation. See 38 C.F.R. § 4.125(a).

Next, the evidence of record demonstrates that the Veteran has a current diagnosed acquired psychiatric disorder, specifically unspecified depressive disorder and alcohol use disorder. See March 2017 VA examination report. A November 2011 VA treatment record reflects that the Veteran was diagnosed with alcohol dependence and depressive disorder. A February 2014 VA treatment record notes a positive depression screen.

November 2011 VA treatment records note that the Veteran reported symptoms consistent with generalized anxiety and panic disorders, but do not diagnosed these disorders. The March 2017 VA examination report attributes the Veteran’s symptoms of anxiety to the alcohol use and unspecified depressive disorders.

The Board further finds that the weight of evidence of record shows that the currently diagnosed unspecified depressive disorder has been attributed to alcohol use disorder. Direct service connection for disability resulting from a claimant’s own drug or alcohol abuse is precluded for all VA benefit claims filed after October 31, 1990 (including in this case with the service connection claim received in June 2010). See VAOPGCPREC 7-99; VAOPGCPREC 2-98. Compensation cannot be awarded pursuant to 38 U.S.C. § 1110 and 38 U.S.C. § 105(a) either for primary alcohol abuse disabilities or for secondary disabilities that result from primary alcohol abuse. Allen v. Principi, 237 F.3d 1368, 1376 (Fed. Cir. 2001). Primary alcohol abuse disability means an alcohol abuse disability arising from voluntary and willful drinking to excess. Id.

VA regulations state that no compensation shall be paid if a disability is the result of alcohol abuse. 38 C.F.R. § 3.301. For the purpose of this regulation, alcohol abuse means the use of alcoholic beverages over time, or such excessive use at any one time, sufficient to cause disability to or death of the user; drug abuse means the use of illegal drugs (including prescription drugs that are illegally or illicitly obtained), the intentional use of prescription or non-prescription drugs for a purpose other than the medically intended use, or the use of substances other than alcohol to enjoy their intoxicating effects. 38 C.F.R. § 3.301(d). See also 38 U.S.C. § 105;
38 C.F.R. § 3.1(m).

The March 2011 VA examiner noted a primarily diagnosis of alcohol dependence with physiological dependence as well as rule out (r/o) alcohol-induced mood disorder and rule out depressive disorder, not otherwise specified (NOS). The VA examiner further noted that, while the Veteran reported symptoms of depressed mood, it was not possible to determine if those symptoms are a separate clinical disorder or if they are part of the associated effects of alcohol dependence (with associated intoxication and withdrawal). The VA examiner opined that the mental health symptoms appear to be primarily related to alcohol dependence.

The March 2017 VA examiner noted diagnoses of alcohol use disorder, severe and unspecified depressive disorder, rule out alcohol-induced depressive disorder. The VA examiner assessed that alcohol dependence could wholly or partially account for the currently reported depressive symptoms. The VA examiner noted that the Veteran would need to be abstinent from alcohol for at least six months before depression could be attributed to anything other than substance abuse and dependence. The VA examiner opined that the current psychiatric disorder was less likely as not incurred in or caused by service.

The Board finds the March 2011 and March 2017 VA examination reports to be highly probative evidence that the Veteran’s depressive disorder is related to alcohol use disorder. The VA examiners reviewed the claims file, had the requisite medical expertise to render a medical opinion, had sufficient and accurate facts, factual assumptions, and data on which to base conclusions, and stated the bases supporting the opinion that the Veteran’s unspecified depressive disorder is related to the alcohol use disorder. VA regulations preclude service connection for alcohol abuse. 38 C.F.R. § 3.301.

For the reasons discussed above, the Board finds that the weight of the evidence demonstrates that the Veteran does not have a current diagnosis of PTSD in accordance with the DSM-IV or DSM-5 criteria as required under 38 C.F.R. § 4.125(a). The Board further finds that the weight of the evidence demonstrates that the current diagnosed unspecified depressive disorder has been attributed to the alcohol use disorder, for which service connection is barred by statute and regulation. As such, service connection for an acquired psychiatric disorder, to include PTSD and depressive disorder, is not warranted. As the preponderance of the evidence is against the claim, or the benefit is barred as a matter of law, the benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.

ORDER

Service connection for an acquired psychiatric disorder, to include PTSD and depressive disorder, is denied.

____________________________________________
J. Parker
Veterans Law Judge, Board of Veterans’ Appeals

Department of Veterans Affairs

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