Citation Nr: 1761157
Decision Date: 12/29/17 Archive Date: 01/02/18

DOCKET NO. 10-23 782 ) DATE
)
)

On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania

THE ISSUE

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

REPRESENTATION

Veteran represented by: Disabled American Veterans

ATTORNEY FOR THE BOARD

P. Noh, Associate Counsel

INTRODUCTION

The Veteran had active military service from December 1963 to December 1965.

This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California.

In January 2014, August 2016, and June 2017, the Board remanded the claim for further evidentiary development and adjudication. That development has been accomplished, and the claim has now been returned to the Board for further action. See Stegall v. West, 11 Vet. App. 268 (1998). The matter has returned to the Board for appellate consideration.

This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014).

FINDINGS OF FACT

1. The competent and probative evidence shows that the Veteran does not have a diagnosis of PTSD which conforms with .

2. The competent and probative evidence shows that the Veteran’s acquired psychiatric disorder of depressive disorder is not shown to be causally or etiologically related to an in-service event, injury or disease.

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. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2017).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Duties to Notify and to Assist

With respect to the Veteran’s claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017).

II. Service Connection

Generally, to establish service connection for PTSD a Veteran must show: (1) current diagnosis of PTSD under DSM-5; (2) credible supporting evidence that the claimed in-service stressor occurred; and (3) a causal relationship between the present disability and the in-service stressor. 38 C.F.R. § 3.304(f)(1), 4.125(a).

If the evidence establishes that the Veteran 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 Veteran’s service, the Veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor. See 38 U.S.C. § 1154 (b); 38 C.F.R. § 3.304 (f)(1).

As an initial matter, during the course of the appeal the regulations pertaining to psychiatric disorders were amended. See 79 Fed. Reg. 45,093 (August 4, 2014) (effective August 4, 2014). Specifically, the regulations were updated so that all psychiatric diagnoses must be in conformity with diagnostic criteria in the DSM-5, as opposed to the DSM-IV. Id. However, the regulation states that it was not the intent of the Secretary to have the rule change apply to cases that had been certified to or were pending before the Board at the time of the change. Id. As the Veteran’s claim was pending before the Board prior to August 4, 2014, whether the Veteran has a diagnosis of PTSD will be determined based on the criteria in the DSM-IV.

VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).

After a review of the record, the Board finds that the Veteran does not meet the standards for service connection as the preponderance of the competent evidence shows there is no current diagnosis of PTSD and no nexus between active service and depression.

A review of the service treatment records is negative for any complaints, treatment, or diagnoses of any psychiatric disorder except in the pre-induction examination. In the pre-induction examination, the Veteran stated that he had abnormal psychiatric disorder with “depression or excessive worry” and “trouble with nervousness.” However, the Veteran denied having trouble sleeping or having nightmares. At the separation examination, the Veteran was noted to be normal psychiatricly.

A review of the post-service treatment records show that the Veteran does not have a current disability of PTSD.

In the November 2008 VA examination, the Veteran reported that his responsibilities were largely that of ammunition bearer or carrying a mortar barrel or ring block. The Veteran stated that he was not involved in direct firing of mortars. The Veteran reported three major military stressors. First, the Veteran stated that his unit was involved in a mine explosion that resulted in some injuries. The Veteran confirmed that no one was killed or seriously injured during the incident and the guy in front of him only sustained minor wounds. As for the second stressor, the Veteran was unable to provide an accurate and consistent account of his experience. The Veteran stated that his unit passed through a village and saw (or not saw) dead bodies. The Veteran only reported a general impression of the bodies and smell without much specific details. For the third stressor, the Veteran reported that he was in combat and witnessed Captain Kerry and his sergeant being shot. However, upon specific questioning, the Veteran eventually admitted that he did not witness anyone get shot while in Vietnam. The Veteran stated that Captain Kerry was shot in another area and that he did not see it and his sergeant was shot in a different area. In both cases, the Veteran did not witness the events nor did the events occur in his direct vicinity. The Veteran also reported that he heard that his best buddy drowned, but he was already home when that occurred. The examiner noted that these recount of events were markedly different from the Veteran’s statement to his treating physician wherein the Veteran indicated that he had seen several people killed and injured near him. The examiner notes that even during the VA examination the Veteran tended to mix stories together rather liberally, often giving misimpression of his actual vicinity to incidents or his witnessing of particular incidents or events.

In the mental status examination, the Veteran was alert, responsive, cooperative and attentive. His mood was cheerful and pleasant with a broad range of affect. The Veteran reported that his sleep was “very good” with six to seven hours of sleep per night with no reports of dreams or nightmares. No associative symptoms were reported and no withdrawal or obsessive behaviors were reported or observed. The examiner administered some psychological tests that did not support a diagnosis of PTSD, consistent with the treating physician’s February 2008 finding. The examiner explained that although the treatment records show the Veteran was diagnosed with PTSD, they were based on the Veteran’s misrepresentation of certain events, as the Veteran admitted that he never saw anyone killed in Vietnam and did not report any serious injury or direct combat. As such, the examiner determined that there is no history of pre- or post- military trauma.

In the April 2010 VA examination, the examiner confirmed the November 2008 examiner’s opinion and further stated that the November 2008 examiner took the Veteran’s statement of his military stressors at face value and the fact that the Veteran did not have a Combat Infantry Badge had no bearing on the outcome of the November 2008 evaluation. Further, the evidence of record clearly indicates that the treatment is focused on mild depressive symptoms.

In the March 2014 VA examination, the examiner noted that the Veteran did not have a diagnosis of PTSD that conformed to DSM-5 criteria, but rather the Veteran had persistent depressive disorder that is in no way related to, caused by, or the result of the Veteran’s military service. The examiner reviewed the record and noted that although the Veteran’s treating physician diagnosed the Veteran with chronic PTSD, none of the psychiatry notes contained psychological testing for PTSD, detailed description of stressors, or detailed description of specific symptoms.

At the examination, the Veteran reported minimal symptoms of depression or anxiety which he attributed to improved sleep, antidepressant medication, and coping mechanism. Although the Veteran stated that he does not like rainy days as it reminded him of Vietnam, he also did not spontaneously reported experiencing any nightmares or distressing dreams about Vietnam. The Veteran also denied experiencing symptoms of panic, obsessive thoughts, compulsive behaviors, lingering irritability, anger, violence, auditory hallucination, or visual hallucination. The Veteran stated that he is not experiencing flashbacks, but rather ruminative negative thoughts of his service in Vietnam.

At the mental status examination, the Veteran was noted to be alert and fully oriented. His mood was largely euthymic with a wide range of affect that was generally pleasant in tone. There were no signs of depression or anxiety during the interview. It was noted that when the Veteran discussed his military experiences, he tended to weave specific situations together, providing a confusing picture. The Veteran underwent psychological test that resulted in a finding that the Veteran was not experiencing psychological distress and thus does not support a diagnosis of PTSD.

The Veteran reported three military stressors. For his first stressor, the Veteran reported that Viet Cong had infiltrated the perimeter and he shot in multiple directions aimlessly in self-defense. For the second stressor, the Veteran reported that his unit was involved in a mine explosion near a bridge. The Veteran stated that his unit sustained minor injuries. The examiner determined that the first stressor met the requirements of Criterion A (i.e., is it adequate to support he diagnosis of PTSD), but the second stressor did not.

Based on the records and the VA examination, the examiner opined that the Veteran’s depression stemmed primarily from a variety of life stressors with military-related concerns being less significant. The examiner cited to the Veteran’s very stressful marriage and some difficulty readjusting to civilian life. While the Veteran exhibited symptoms of depression, such as depressed mood, irritability, crying spells, decreased appetite, disrupted sleep, ruminative thoughts about Vietnam and periodic dreams about Vietnam, he was also experiencing racial bias through his employment which was extremely stressful. Even at this examination, the Veteran reported stressors of providing care to his wife who has significant health problems. As such, the examiner opined that the Veteran’s symptoms of depression have been related mainly to life stressors which have nothing to do with military service. Accordingly, it is less likely than not that the Veteran’s depression began during service or is otherwise linked to service.

In the March 2014 VA examination, the examiner opined that although the Veteran’s first stressor does meet Criterion A stressor per DSM-5, the Veteran has not experienced sufficient number of other symptoms required for a diagnosis of PTSD. The examiner acknowledged that the Veteran was diagnosed with PTSD by his treating physician, but that the VA examination more accurately reflects the Veteran’s condition as the psychological testing data provides more detailed evaluations; thus, more thorough and reliable assessment of the Veteran’s symptoms. As such, the examiner opined that the Veteran’s symptoms do not meet the criteria for PTSD under DSM-5 or DSM-IV.

In the January 2017 VA examination, the Veteran was pleasant and animated. He had euthymic mood with full and appropriate affect. The Veteran conveyed that he was traumatized in military when he had to wear the same clothes for two to three weeks, and seeing dead bodies. The examiner determined that this stressor did not meet Criterion A of PTSD and that the Veteran did not meet DSM-IV diagnostic criteria for PTSD. Criterion A was not met because the Veteran did not describe a stressor in sufficient detail as to qualify for Criterion A. When asked about stressful experiences in Vietnam, the Veteran repeatedly discussed the stress of having to wear the same clothes for weeks and sleeping on the ground. Although the Veteran reported that he would have occasional thoughts of his Vietnam service, he also stated that he was able to quickly redirect himself from these thoughts. The Veteran reported he is sleeping very well and his sleep improved with regular use of his CPAP machine. The Veteran further stated that he has not experienced any flashbacks.

The examiner opined that the symptoms meet the criteria for Depressive Disorder. The Veteran’s enlistment exam notes that he endorsed having depression or excessive worry and nervous trouble of sorts. As depression is an episodic condition it would follow that the Veteran would be susceptible to experiencing future depressive episodes. Based the records, the examiner opined that the Veteran’s depression clearly and unmistakably existed prior to service and has likely occurred on and off throughout his life. Further, the examiner opined that there is no evidence to suggest that the Veteran’s depression was worsened beyond its natural progression by his military service.

In the July 2017 VA examination, the Veteran was alert and oriented and he exhibited euthymic mood with full range of affect. The Veteran stated that rain would remind him of the smell of dead bodies and of napalm. The Veteran also reported that he experienced startle responses, nightmares, and would avoid crowds. The Veteran reported three military stressors. For the first stressor, the Veteran reported that he fired his weapon. For the second stressor, the Veteran recounted the time when there was an explosion near a bridge that resulted in some injuries to his unit members.

The examiner opined that the Veteran does not meet the criteria for PTSD but rather the Veteran meets the criteria for unspecified depressive disorder which was less likely than not incurred in, due to, or aggravated by Veteran’s service. The examiner explained that although the Veteran’s stressor qualifies the Criterion A stressor, the Veteran did not present with the full constellation of symptoms found with PTSD.

Further, the examiner opined that the Veteran’s depression is less likely than not caused by, incurred in, or aggravated by his service. Although the Veteran emphasized sadness attributing this to memories of unhygienic conditions in Vietnam, such conditions would not be expected to cause chronic depression. It is more likely that other factors contributed to the Veteran’s depression, such as the death of his wife, marital issues, and other health and family concerns.

The Board finds that the VA examiners’ opinions are adequate because the examiners thoroughly reviewed and discussed the relevant evidence, personally examined the Veteran, considered the contentions of the Veteran, and provided thorough supporting rationale for the conclusions reached. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Further, even the post-service treatment records show that the Veteran complained of health and family related stressors more so than military-related stressors. In fact, predominantly, the Veteran reported good appetite, good mood, and good sleep. Further, the records show that the Veteran reported less frequent occurrences of flashbacks and nightmares. Accordingly, the Board finds that the VA examiner’s opinion is competent, credible, and persuasive and assigns it high probative weight.

While the Board recognizes the Veteran’s sincere belief in his PTSD claim and description of his symptoms, the most competent medical evidence of record does not show that the Veteran has PTSD for VA compensation purposes during any period of his appeal. Indeed, as noted above, according to the objective evidence of record, the Veteran does not meet the criteria for PTSD but rather the Veteran meets the criteria for unspecified depressive disorder which was likely than not incurred in, due to, or aggravated by Veteran’s service. For instance, in the initial evaluation in February 2008, the treating physician noted that the Veteran exhibited very minimal symptoms and no impairments that would warrant a diagnosis of PTSD. The Veteran did not experience avoidance or numbing symptoms nor did he exhibit hyperarousal in order to meet the criteria for PTSD. The Veteran was diagnosed with dysthymic disorder. As the Veteran received further treatment, the Veteran reported flashbacks and nightmares of his experience in Vietnam. The Veteran was subsequently diagnosed with chronic PTSD. However, from 2009 to 2017, the Veteran’s psychiatric disability was well managed with psychotropic medication with unremarkable findings. Specifically, the Veteran reported good mood with less frequent flashback and nightmares. The Veteran experienced some hardship during the rainy season as the rain would remind him of Vietnam, but by October 2014 the Veteran reported that he felt he did not have any PTSD related symptoms since his wife’s death. In 2015, the Veteran stated that he had anxiety but had no difficulties in controlling the anxiety. The Veteran even went on to say that his PTSD was well-controlled and he no longer had nightmares and flashbacks. In 2016 and 2017, the treatment records noted that the Veteran was calm and exhibited euthymic mood with appropriate affect.

In conclusion, the preponderance of the evidence establishes that the Veteran does not have a current disability of PTSD, and the preponderance of the evidence establishes that the Veteran’s depression is not etiologically or causally related to his active service. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. For these reasons, the claim for service connection for psychiatric disability is denied.

ORDER

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

____________________________________________
E. I. VELEZ
Veterans Law Judge, Board of Veterans’ Appeals

Department of Veterans Affairs

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