BVA9504481 DOCKET NO. 90-29 986 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in San Juan, Puerto Rico THE ISSUE Entitlement to service connection for post-traumatic stress disorder. REPRESENTATION Appellant represented by: Octavio A. Diaz-Negron, Attorney ATTORNEY FOR THE BOARD Michael Martin, Counsel INTRODUCTION The veteran had active service from 1940 to 1945, and from 1950 to 1955. This case arises from the San Juan, Puerto Rico, Regional Office (RO). In April 1992, the Board of Veterans' Appeals (Board) denied service connection for post-traumatic stress disorder (PTSD). The veteran appealed to the United States Court of Veterans Appeals (Court). In October 1993, the Court granted a joint motion for remand. In April 1994, the Board remanded the case to the RO for additional development. The case has now been returned to the Board for further appellate review. The Board notes that in 1969, 1974, 1978, 1981, and 1983, decisions were issued by the Board denying service connection for an acquired psychiatric disorder, variously classified as an anxiety reaction and a nervous disorder. The veteran has not questioned the finality of those decisions and the current appeal has been limited by the veteran and his representative to the issue stated. In view of the fact that the appeal on the current issue is de novo in nature while any reopening of the prior denied issues would have to be under the higher standard of whether new and material evidence had been submitted, the previously considered issues are not considered to be implied or inferred in the current appeal. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the RO made a mistake by denying his claim for service connection for post-traumatic stress disorder. He asserts that he developed post-traumatic stress disorder as a result of his exposure to combat during the Korean Conflict. He argues that the disability evaluation examinations conducted by the VA which did not result in a diagnosis of post-traumatic stress disorder were incomplete or deficient. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims files. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the veteran's claim for service connection for post-traumatic stress disorder. FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of the issue on appeal has been obtained. 2. The veteran does not have a clear diagnosis of post-traumatic stress disorder. CONCLUSION OF LAW Post-traumatic stress disorder was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. § 3.304(f) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has found that the veteran's claim is "well-grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, his claim is not inherently implausible. The Board is also satisfied that all relevant facts have been properly developed. The veteran has declined the opportunity to have a personal hearing. The evidence which has been obtained includes the veteran's available service medical and personnel records, post service medical treatment records, and reports of several disability evaluation examination reports. Although a disability examination in March 1991 was conducted by only two examiners, rather than by three as had been requested by the Board in a prior remand, the error was essentially a harmless one as the veteran was subsequently afforded another disability evaluation examination by a third examiner in May 1994. The Board finds that all evidence necessary for an equitable disposition of the veteran's claim has been obtained. The Board does not know of any additional relevant evidence which is available. Therefore, no further assistance to the veteran with the development of evidence is required. In general, service connection may be granted for disability due to disease or injury incurred in or aggravated by service. See 38 U.S.C.A. §§ 1110, 1131 (West 1991). Under 38 C.F.R. § 3.304(f) (1994), service connection for post-traumatic stress disorder requires medical evidence establishing a clear diagnosis of the condition, credible evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed in- service stressor. There is no dispute that the veteran was involved in combat during service. His DD 214 shows that his military occupational specialty was machine gunner, heavy. His awards and decorations included the Combat Infantryman Badge and the Purple Heart. He reportedly received a shell fragment wound of the left hip in Korea in June 1951. Thus, the primary issue on appeal is not whether the veteran had an in-service stressor, but rather whether there is a clear diagnosis of post-traumatic stress disorder. The veteran has submitted written statements showing that he believes that he developed post-traumatic stress disorder as a result of engaging in combat in Korea. For example, in a written statement of May 1989, the veteran stated (according to a translation done in June 1991) that he was "...suffering PTSD for the bitterness, sufferings, sacrifices and dangers on which I was involved at the firing lines...". The Board notes, however, that the veteran does not have the qualifications necessary to render a diagnosis or to offer a medical opinion regarding the nature or etiology of a psychiatric disorder. A diagnosis or an opinion regarding the etiology of a medical disorder may only be made by qualified medical personnel. See Espiritu v. Derwinski, 2 Vet.App. 492, 494 (1992). The same analysis applies to written statements from the veteran's wife and from friends of the veteran which are to the effect that the veteran developed post- traumatic stress disorder as a result of combat during service. Because the statements were written by lay persons, the statements are not competent evidence. Actual medical evidence is required. The medical evidence which is of record, however, does not show that the veteran has post-traumatic stress disorder. For example, the veteran's medical treatment records show that his disorder is a psychiatric disorder other than post-traumatic stress disorder. In reaching this conclusion, the Board has considered earlier records which show that PTSD was, for a time, thought to be one of the veteran's disorders. For example, a VA medical record dated in April 1989 shows that the diagnoses were "Dysthymic disorder; PTSD". However, later records show that the PTSD diagnosis has been discarded. A VA consultation sheet dated in June 1991 shows that the veteran was referred by a mental health clinic to a post-traumatic stress disorder clinic. In the consultation request it was noted that the veteran had recently been evaluated by a compensation and pension (C&P) team and that the formal diagnosis was dysthymic disorder. The veteran reportedly was not satisfied with that assessment and stated that he always had his war experiences on his mind. The consultation report shows that the veteran was known to the clinic. He reportedly had been seen in the past. The diagnostic impression of psychological tests, previous psychological examinations by other psychiatrists of the center, including two C&P examinations, had given a diagnostic impression of dysthymic disorder. The consulting psychiatrist noted that it was true that the veteran had nightmares of war, but that this was part of his affective condition and that he was not considered to be a good candidate for a PTSD group. Similarly, a VA outpatient medical treatment record dated in May 1994 shows that the veteran was referred by the mental health center for a PTSD clinic evaluation. Following examination, however, the diagnostic impression was depression with psychotic features. Examinations conducted by the VA specifically for disability compensation purposes also do not contain a clear diagnosis of post-traumatic stress disorder. For example, a report of a psychiatric examination conducted by the VA in February 1989 shows that, following examination, the diagnoses were dysthymic disorder and alcohol dependency in remission by history. Post- traumatic stress disorder was not diagnosed. A report of psychology tests administered by a VA psychologist in March 1991 shows that the tests which were administered included sentence completion, MMPI, PTSD scale, and an interview. The psychologist made the following comments regarding the test results: Patient is a 71 y.o. male veteran with reportedly an eighth grade education and he states that he has not been employed since 1970. He describes a condition of left hip plus PTSD complaints. Upon testing pt. was cooperative and verbal. He was verbally repetitive in his complaints of how he has PTSD symptoms. During testing he was alert and responsive and MMPI suggested some symptom exaggeration. Test data reveals that the patient has: significant anxiety symptoms, somatization, depressive ideation and poor coping skills. He has difficulty in differentiating between past traumas and present situations, in fact he becomes somewhat regressed. Diagnostically, this case is not fully clear because no clear homogenous pattern emerges from the data. He shows significant features of: anxiety, somatization, personality disorder, n.o.s., and PTSD signs. Reviewing the data carefully no clear focal trauma is evident regarding his PTSD experiences and he also presents with multiple generalized anxiety patterns. His present coping skills seem poor. He perseverates on his problems and past war memories. Interpersonal relations appear tense. Diagnostically possible diagnostic impressions are: (1) R/O Generalized Anxiety Disorder (2) R/O Personality Disorder with PTSD traits. The Board notes that the "Diagnostically possible diagnostic impressions" noted by the psychologist are not the equivalent of a clear diagnosis of post traumatic stress disorder. Furthermore, later in March 1991, when the veteran was afforded a psychiatric examination conducted by a board of two VA psychiatrists, the possibility of a diagnosis of post-traumatic stress disorder was refuted. The report shows that the examiners noted that the veteran had undergone a psychological evaluation earlier that month, and that the psychiatrists attached a copy of the test results to their report. The psychiatrists stated that they examined the veteran after evaluating all records and evidence. They noted that the veteran was on active duty during World War II and the Korean conflict. Mental status examination reportedly revealed that the veteran was spontaneous, coherent, relevant, very verborrheic, very circumstantial, and that a lot of projections and exaggeration was detected. The veteran was described by the examiners as being quite manipulative and trying to give the impression of looking worse than he was. He reportedly contradicted himself on multiple occasions, and there were no real thought disorders or perceptive disorders. He insisted upon fights and problems he had in combat, but his affect did not correspond to his complaints. It was observed that the veteran insisted to feel depressed and down, but no tears or sad expression was detected. The examiners noted that the whole picture was rather confusing. Nevertheless, the examiners concluded that "The patient's history, examination, complaints, etc., do not meet the criteria for a Post Traumatic Stress Disorder diagnosis." The diagnoses by the board of two psychiatric examiners were dysthymic disorder, mild, and many dependent and hysterical personality features. Although the examiners did not comment extensively regarding the conclusion reached by the psychologist earlier that month that "Diagnostically possible diagnostic impressions are: (1) R/O Generalized Anxiety Disorder (2) R/O Personality Disorder with PTSD traits", it is clear that the psychiatric examiners felt that a diagnosis of post-traumatic stress disorder was not warranted. Finally, a report of a post-traumatic stress disorder examination conducted by the VA in May 1994 shows that a different VA psychiatrist reached essentially the same conclusion. Following examination, the diagnoses were dysthymia with anxiety features, and passive-dependent and histrionic personality traits. In reaching that conclusion, the examiner made the following comments: This 74 years old male veteran was referred from the Adjudication Office for post- traumatic stress disorder psychiatric evaluation as a BVA remanded case. The veteran was seen with claim folder only. He was taken into the office by his wife and was interviewed alone. The veteran lives with his wife and his 16 years old retarded son. He receives Social Security and VA Compensation Benefits. A. Medical and occupational history: 1. Immediate pre-military events and details of training: The veteran reports that he never had any psychiatric treatment or evaluations prior to the military service. He joined the Army voluntarily and received basic and combat training. 2. Events in the war zone: He served during WW II stationed in Germany with MOS as a machine gunner and also served in Korea on his second period of service for approximately one year with MOS of military policeman. He reports that his Korean war experiences were the ones that affected him greatly. He reports that he killed a lot of people and that he saw how civilian[s] were crushed by Army trucks. He reports that he also witness[ed] the death of many civilians and soldiers. He reports that he suffered of [having] been placed in stockade while in service. He also reports that he was wounded with mortar fragments in the right hip in Korea. 3. Post active service events: The patient had a psychiatric hospitalization on November 23, 1994 as shown in computer file. He has been seen at PIC, but has no active psychiatric prescriptions in computer file. He reports that he was hospitalized at the Julia Clinic in 1977 and at the Manhattan VA Hospital in 1968 or 1969. He reports that he has been receiving treatment at the Caguas Community Mental Health Center. His wife showed a referral to the SJ VAH for treatment. He reports that he is receiving treatment with Mellaril and other medications that he does not recall. His record shows psychiatric evaluations with diagnosis of schizophrenia chronic undifferentiated type, rule-out generalized anxiety disorder, rule-out personality disorder with PTSD traits, anxiety neurosis, alcohol dependence and dysthymic disorder. 4. Employment history: Prior to military service he used to have odd jobs. After military service he reports that he worked in New York in a hotel until 1970. He is unemployed since. B. Subjective complaints: The veteran reports that all the experiences and activities that he witnessed in Korea affected him greatly. He reports that his memories are kept all the time in his mind. He requests that due to his emotional condition all that he wants is to have the right for treatment and that he wants no money. He reports that the military service is responsible for his present condition and that he has been denied treatment at the SJVAH. He complains of frequent thoughts of killing people and constant thinking of the war. He reports that he is always restless, anxious, isolated from people and that he drinks black coffee at all times. He reports that people are afraid of him due to his talking. He complains of poor memory and that sometimes he goes walking naked in the streets because he thinks that he is dead. He reports having this condition since he left service. He informs that he thinks that he deserves medical treatment because he was a combat soldier. He also complains of bad treatment during his military service because he was not able to speak English. C. Objective findings: The veteran is a clean, thin, adequately dressed and groomed man. He is alert, [and] oriented as to person and place. He makes no effort as to give the exact date. This contrast[s] greatly with his capacity to provide a full description of his complaints and military history. His mood is depressed and anxious. His affect is blunted. He closes his eyes while speaking and appears to be crying at times without production of tears. His speech is clear and coherent. He expresses a lot of resentment against the VA due to lack of attention to his complaints. His memory is fair. He is not hallucinating. He is not suicidal or homicidal. His insight and judgment are fair. He exhibits fair impulse control. D. Veteran is considered competent to handle VA funds. E. Diagnostic tests: None. F. Diagnoses: Axis I: Dysthymia with anxiety features. Axis II: Passive-dependent and histrionic personality traits. Axis III: History of arthritis. Axis IV: Unspecified. Axis V: GAF 0 - unspecified. In summary, the evidence shows that the requirement under 38 C.F.R. § 3.304(f) (1994) of a clear diagnosis of post-traumatic stress disorder has not been met. Although a diagnosis of post- traumatic stress disorder has occasionally been considered, no clear diagnosis of that condition has been rendered. Examiners have repeatedly considered the veteran's history, complaints, and examination findings, and have diagnosed disorders other than post-traumatic stress disorder. 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); and Rabideau v. Derwinski, 2 Vet.App. 141 (1992). The evidence shows that post-traumatic stress disorder is not currently diagnosed. For the foregoing reasons, the Board finds that the veteran does not have post- traumatic stress disorder. Accordingly, the Board concludes that post-traumatic stress disorder was not incurred in or aggravated by service. ORDER Service connection for post-traumatic stress disorder is denied. WARREN W. RICE, JR. Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.