Citation Nr: 0007229 Decision Date: 03/16/00 Archive Date: 03/23/00 DOCKET NO. 98-02 271 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for post traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Mississippi State Veterans Affairs Commission WITNESSES AT HEARING ON APPEAL Appellant; spouse ATTORNEY FOR THE BOARD C. Allen, Associate Counsel INTRODUCTION The veteran served on active duty from May 1965 to May 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 1997 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Jackson, Mississippi, which denied a claim by the veteran seeking entitlement to service connection for PTSD. The Board also notes that the veteran submitted a claim seeking entitlement to service connection for headaches in May 1996. That claim has not been addressed by the RO. It is referred back to the RO for proper development. This case was originally before the Board in May 1999, at which time it remanded the case back to the RO for additional evidentiary development. That development has been completed and, thus, this case is ready for appellate adjudication. FINDINGS OF FACT 1. All evidence necessary for an equitable adjudication of the veteran's claim has been developed. 2. The veteran served in the Republic of Vietnam during the Vietnam era and, during that time, was involved in combat with the enemy. He was awarded the Combat Infantryman's Badge. 3. The veteran reported inservice combat stressors of seeing many casualties; being involved in friendly fire; transporting dead bodies; being hit with mortar fire; and having a friend die in a helicopter. He also reported being buried alive in a bunker and almost being shot by a sniper. 4. The evidence does not show a clear, current diagnosis of PTSD. 5. The preponderance of the evidence is against the veteran's claim for entitlement to service connection for PTSD. CONCLUSION OF LAW PTSD was not incurred in or related to the veteran's service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 1154(b), 5107(b) (West 1991); 38 C.F.R. §§ 3.303, 3.304(f), 3.307, 3.309 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Laws & regulations a. Well grounded claim In determining whether the veteran is entitled to service connection, the Board must first determine whether a claim is well grounded under 38 U.S.C.A. § 5107(a) (West 1991). A well-grounded claim for service connection is "a plausible claim, one which is meritorious on its own or capable of substantiation." Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The claim does not need to be conclusive, but it must be accompanied by supportive evidence to meet the initial burden put on the veteran by § 5107(a). Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). A claim for service connection for PTSD is well grounded when the veteran has submitted: (1) medical evidence of a current diagnosis of PTSD; (2) lay evidence (presumed credible for these purposes) of an inservice stressor(s); and (3) medical evidence of a nexus between service and the current PTSD disability. Gaines v. West, 11 Vet. App. 353, 357 (1998) (citing Cohen v. Brown, 10 Vet. App. 128, 136-37 (1997)); see also Caluza, 7 Vet. App. at 506; 38 C.F.R. § 3.304(f) (1999). In the Board's May 1999 remand, it initially concluded that this claim was well grounded. To reiterate, the Board finds that the veteran submitted some evidence of a current diagnosis of PTSD, of inservice stressors presumed to have occurred, and of a plausible relationship between the PTSD and inservice stressors. This is sufficient to establish a well-grounded claim. See Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997). Because his claim is well-grounded, the veteran is entitled to assistance with the development of evidence in support of the claim. 38 U.S.C.A. § 5107(a) (West 1991). In this regard, the Board notes that VA obtained his service medical records, provided him a personal hearing, and provided him with several VA compensation and pension examinations. It also attempted to obtain all the evidence which he indicated might be available. The Board remanded this case in May 1999 for the purpose of ensuring that VA fully developed the record. Overall, the Board finds that the veteran has not alleged that any other records of probative value that may be obtained, and which have not already been associated with his claims folder, are available. Thus, all relevant facts have been properly developed and no further assistance to the veteran is required to comply with the duty to assist, as mandated by 38 U.S.C.A. § 5107(a). b. Service connection for PTSD The law states that an award of entitlement to service connection for PTSD requires (1) medical evidence establishing a diagnosis of PTSD; (2) credible supporting evidence that an inservice stressor(s) occurred; and (3) a link, established by medical evidence, between current symptomatology and the claimed inservice stressors. 38 C.F.R. § 3.304(f) (1999); Gaines v. West, 11 Vet. App. 353, 357 (1998) (citing Cohen v. Brown, 10 Vet. App. 128, 136-37 (1997); see also VA ADJUDICATION PROCEDURE MANUAL M21-1, Part VI, 11.38 (Aug. 26, 1996) (reiterating the three PTSD service-connection requirements set forth in regulation § 3.304(f) and specifically requiring "credible supporting evidence that the claimed in-service stressor actually occurred"). Psychoses are presumed to have been incurred in service if manifested to a compensable degree within one year after separation from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 5107 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999); see Hensley v. Brown, 5 Vet. App. 155 (1993). In deciding claims for VA benefits, "when there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant." 38 U.S.C.A. § 5107(b) (West 1991). II. Evidence Service medical records consist of a May 1965 induction medical examination report and May 1968 separation medical examination report, with associated reports of medical history. None of the records note any psychiatric problems. Psychiatric status was reported as "normal" at the time of entry and separation from service. Service personnel records show that the veteran served as a mortar gunner in the Republic of Vietnam during the Vietnam era from February 1968 to May 1968. He was awarded a Combat Infantryman's Badge. An August 1986 VA intake note shows that the veteran sought help for substance abuse, as well as for Vietnam and employment problems. A June 1992 VA PTSD examination report notes, as history provided by the veteran, that he was in combat in Vietnam, but was not wounded or captured. He denied a history of any psychiatric treatment. Current complaints were of homicidal ideation, insomnia, headaches, tension, and stress. The symptoms were related to the Los Angeles riots, which reminded him of Martin Luther King's death during his time in Vietnam. Mental status examination revealed normal motor activity; no flight of ideas, looseness of association, or speech impairment; a euthymic mood; appropriate affect; no hallucinations or identifiable delusions; normal orientation; good recall; sufficient judgment; and fair insight. Conclusion was that he had mild anxiety related to the Los Angeles riots, but that it was not severe enough to warrant a psychiatric diagnosis. During a June 1997 Travel Board hearing (involving a different claim for VA benefits), the veteran testified that he had a mental problem and that it was caused by stomach medication that he was prescribed and also by a motor vehicle accident. The medication and accident caused headaches, dizziness, black-outs, and stress. Financial and marital problems caused pressures, which caused nightmares involving the war zone. An August 1997 VA PTSD examination report reflects the same complaints as in the 1992 VA report. Mental status examination was unremarkable, except for mildly pressured speech and mildly depressed mood and affect. Conclusion was that the veteran did not satisfy the criteria for PTSD, but that he was somewhat depressed possibly due to physical and marital problems. Diagnosis was "depressive disorder, not otherwise specified." A September 1997 VA psychology note indicates that psychological evaluation suggested severe depressive complaints and concerns about physical pain and alcohol use. The situation was worsened by financial and marital problems. Diagnosis was "[rule out] depression due to cannabis abuse vs. depressive disorder" and cannabis abuse. VA outpatient records from June 1997 to June 1998 show that the veteran was enrolled in a trauma recovery group (TRG), but was deemed inappropriate for it. During a June 1998 RO hearing, the veteran testified that he was assaulted by an officer while in the Dominican Republic on or about 1966. He also reported that he was buried alive in a bunker and was almost shot by a sniper in Vietnam. A July 1998 VA psychological evaluation report notes, as history provided by the veteran, that he carried a diagnosis of PTSD and that he appeared to be self-referred. Current issues were of anger, abusive behavior, and depression. He reported alcohol-related problems. He reported a few "horrendous" combat-related situations about which he had nightmares. Mental status revealed a depressed mood; auditory hallucinations; visions; paranoid ideation; sleep disturbances; decreased appetite, energy, and concentration; feelings of guilt, hopelessness, and helplessness; and suicidal and homicidal ideation. Impression was "major depression with psychotic features" and "PTSD, chronic." VA outpatient records from July 1998 to June 1999, consist of social worker's notes regarding the veteran's participation in The Vet Center's TRG at the VA Medical Center in Jackson, Mississippi. A July 1998 Vet Center intake evaluation form shows, as stressors, that the veteran saw many causalities, was involved in friendly fire, transported dead bodies, and was hit with mortar fire. Assessment was that the veteran had PTSD symptoms and problems with alcoholism, domestic abuse, and his physical health. His psycho-social focus was "subdiagnostic PTSD." Another July 1998 record indicates that, during service, he was involved in mortar fire and ambushes and had a friend die in a helicopter. Diagnosis was that the veteran had an anxiety disorder and adjustment disorder and that PTSD needed to be ruled out. A July 1998 social worker's note indicates that the veteran had "PTSD symptoms," but that he was evaluated as "sub-threshold PTSD." A December 1998 note indicates that he had "trauma issues related to Vietnam." A June 1999 VA PTSD examination report reflects that, pursuant to the Board's remand, the veteran was evaluated by 2 psychiatrists and that his claims file and patient chart were reviewed. Medical history reflects that he was in combat in Vietnam and killed several people, including some of his own men. He had feelings of emptiness and nightmares about the incident, but also indicated that most of his nightmares were about fear of his wife having an affair. He denied flashbacks, except for one occasion in 1995 when he "jumped" his family, believing that they were Vietnamese people. He indicated that he stayed away from firecrackers due to their noise and smell, but stated that he had several guns and enjoyed hunting. He reported sleep difficulties due to thoughts of his spouse's infidelity. He reported being depressed since losing his job in 1993. Mental status examination revealed a dysthymic mood, but normal psychomotor activity, affect, speech, and thought process. He denied hallucinations, suicidal or homicidal ideation, and obsessions or compulsions. Cognitive evaluation was average, as was fund of knowledge and intelligence. Insight and judgment were fair. Diagnosis was dysthymic disorder and marijuana abuse. It was remarked that the veteran was chronically depressed for the past 5 to 6 years, but that his symptoms were not severe enough to warrant a diagnosis of major depressive disorder. The report indicates that the veteran had a few symptoms of PTSD, but not enough to warrant a diagnosis of PTSD. In August 1999, numerous VA outpatient records from The Vet Center were received at the RO. These are dated from May 1992 to July 1999. A May 1992 record shows that the veteran was seen for complaints of nightmares, nervousness, and flashbacks of Vietnam. Assessment was agitation; PTSD was to be ruled out. He was referred to the TRG. A June 1992 TRG assessment report indicates an initial diagnostic impression of dysthymic or depressive disorder. A June 1992 TRG follow- up record indicates that the veteran did not appear to meet the criteria for PTSD. He had symptoms of persistent arousal, but they were very infrequent and he did not avoid the trauma stimuli. The more appropriate diagnosis was depression or dysthymia. It is noted that trauma-focused therapy was not warranted. A September 1992 note shows that the veteran's symptoms of PTSD were resolved. A September 1994 TRG psychometric testing report reflects an invalid profile and, thus, could not support a diagnosis of PTSD. A December 1995 assessment states that the veteran indicated that he was diagnosed with PTSD, but was taking no medications for it and it was not a significant distress to him at present. He was worried about his domestic abuse court hearing. More recent TRG notes show that PTSD needed to be ruled out. A December 1998 note shows a diagnosis of anxiety disorder, not otherwise specified, and a "provisional" diagnosis of PTSD, secondary to combat exposure. Counseling notes from March, April, June, and July 1999 show a PTSD diagnosis. III. Analysis As stated above, an award of entitlement to service connection for PTSD requires (1) medical evidence establishing a diagnosis of PTSD; (2) credible supporting evidence that an inservice stressor(s) occurred; and (3) a link, established by medical evidence, between current symptomatology and the claimed inservice stressors. 38 C.F.R. § 3.304(f) (1999); Gaines v. West, 11 Vet. App. at 357. Initially, the Board recognizes that the veteran was involved in combat with the enemy during his active service. This is presumed from his DD-214, which shows that he was a mortar gunner in Vietnam from February to May 1968, and that he received the Combat Infantryman's Badge. The Board also recognizes that the veteran has alleged several stressors incident to his combat experience. He reported seeing many causalities, being involved in friendly fire, transporting dead bodies, being hit with mortar fire, having a friend die in a helicopter, being buried alive in a bunker, and almost being shot by a sniper. There is no evidence of record rebutting these allegations. The law provides that, 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 stressors. 38 C.F.R. § 3.304(f) (1999); 38 U.S.C.A. § 1154(b) (West 1991); see also Zarycki v. Brown, 6 Vet. App. 91, 98 (1993) (Where it is determined, through recognized military citations or other supportive evidence, that the veteran was engaged in combat with the enemy and the claimed stressors are related to such combat, the veteran's lay testimony regarding claimed stressors must be accepted as conclusive as to their actual occurrence and no further development for corroborative evidence will be required, provided that the veteran's testimony is found to be 'satisfactory,' e.g., credible, and 'consistent with the circumstances, conditions, or hardships of [combat] service.'). Therefore, the Board finds sufficient evidence of inservice stressors for purposes of the claim for service connection for PTSD; no independent verification is necessary. 38 C.F.R. § 3.304(f) was amended, to bring about regulatory consistency with the holding in Cohen v. Brown, 10 Vet. App. 128 (1997) (decided March 7, 1997, amended April 8, 1997), effective the date of the Cohen decision which noted that the existing § 3.304(f) did not adequately reflect, for the purposes of establishing an in-service stressor, the relaxed adjudicative evidentiary requirements provided by 38 U.S.C. § 1154(b) for establishing service incurrence of a combat event which can be established by the veteran's lay testimony alone (and not only by citations and service records). Accordingly, the amended 38 C.F.R. § 3.304(f) no longer refers to service department evidence of combat and receipt of combat citations, and states that 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. In light of the above, a determinative issue in this case is whether the veteran has a current diagnosis of PTSD. This is the initial requirement for entitlement to service connection. It requires "medical evidence establishing a clear diagnosis" of PTSD. 38 C.F.R. § 3.304(f) (1999). The United States Court of Appeals for Veterans Claims (Court) has held, citing 38 C.F.R. § 3.304(f), that a diagnosis of PTSD must be "clear," "current," and "unequivocal." Cohen, 10 Vet. App. at 139. However, because specific requirements regarding the sufficiency of a stressor and the adequacy of symptomatology to support a PTSD diagnosis are not contained in 38 C.F.R. § 3.304(f), a clear diagnosis of PTSD by a mental health professional must be "presumed (unless evidence shows to the contrary) to have been made in accordance with the applicable DSM criteria." Id. at 140. In this case, the record contains voluminous medical records, mainly VA, documenting the veteran's psychiatric treatment. Since the determination is whether the veteran has a "current" diagnosis of PTSD, the Board finds that more recent medical records are ordinarily of higher probative value than older records. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Court has also held that "[t]he probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches...As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [BVA as] adjudicators..." Guerrieri v. Brown, 4 Vet. App. 467, 470- 71 (1993). After careful review of the evidence, the Board finds that the veteran lacks a current, clear diagnosis of PTSD. In making this determination, it has weighed the evidence both for and against the veteran's claim and finds that the preponderance of the evidence is against his claim. The Board's decision rests, in great part, on the several VA examination reports of record. When the veteran initially submitted his claim, he underwent VA examination in June 1992. The report of that examination shows that he had some mild anxiety, but that he had no psychiatric diagnosis. The August 1997 and June 1999 VA examination reports show that the veteran had a psychiatric disorder, but not PTSD. In those reports, it is reported that he had a depressive disorder or dysthymic disorder. Both reports specifically address the issue of PTSD and both conclude that he did not meet the criteria for a diagnosis of PTSD. The 1999 report is of high probative value because it is the most recent psychiatric evaluation report of record and was the product of evaluation of the veteran by 2 psychiatrists, whom the Board had specifically requested to render an opinion as to the presence of PTSD. Further supporting the Board's determination is the vast majority of the VA outpatient medical records, including The Vet Center counselor's notes, which indicate that the veteran does not have PTSD. Those records indicate that he had depressive symptoms, substance abuse problems, and some PTSD symptoms; however, for the most part, they provide no diagnosis of PTSD. They repeatedly conclude that the veteran had financial, employment, health, and marital problems, and that he was "subdiagnostic PTSD," "sub-threshold PTSD," or otherwise did not meet the criteria for a clinical PTSD diagnosis. He was repeatedly determined to be ineligible for the TRG therapy program because his psychiatric problems were most likely a depressive or dysthymic disorder. The Board recognizes that the veteran has asserted that he has PTSD. However, lay statements as to a medical diagnosis are not competent evidence because lay persons are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Moreover, even the veteran, during a June 1997 personal hearing, testified that his mental problems were due to stomach medication and a motor vehicle accident, and that it was financial and marital problems that caused him to have nightmares. The Board acknowledges that a few medical records show a diagnosis of PTSD. These include a July 1998 VA psychologist's evaluation report. However, the Board finds that report of diminished probative value because it was a product of an apparent self-referral by the veteran, who provided medical history of a PTSD diagnosis. No such diagnosis is shown in any medical evidence of record dated prior to July 1998. A diagnosis based on inaccurate factual history is of little probative value. See Guimond v. Brown, 6 Vet. App. 69 (1993); Swan v. Brown, 5 Vet. App. 229, 233 (1993); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (an opinion based upon an inaccurate factual premise has no probative value). The only other medical evidence indicating a PTSD diagnosis is The Vet Center counseling notes from December 1998 through July 1999. However, those records, too, are of decreased probative value. First, the December 1998 note indicates that said diagnosis was "provisional." Second, the subsequent PTSD diagnoses appear to be mere carry-over diagnoses, as there is no clinical evidence in the notes to support the conclusions. Third, the diagnoses were made by a social worker and a nurse practitioner, not a licensed psychiatrist. Finally, the Board finds that the majority of TRG notes from The Vet Center indicate diagnoses other than PTSD. Overall, the diagnoses of PTSD, presumed valid, represent a minority of the competent medical evidence of record. The great preponderance of the evidence, including clinical assessments by VA psychiatrists after full mental status examinations, shows that the veteran has a dysthymic or depressive disorder and that he does not meet the criteria for a diagnosis of PTSD. In light of the above, the Board must conclude that the claims file does not contain a clear and current diagnosis of PTSD. As such, the first element for service connection for PTSD has not been satisfied. 38 C.F.R. § 3.304(f) (1999); Cohen v. Brown, 10 Vet. App. at 139. It is noteworthy that no psychoses were initially noted within 1 year after the veteran's discharge from service. Thus, the provisions pertaining to presumptive service connection for psychoses are not applicable. See 38 C.F.R. §§ 3.307, 3.309 (1999). The veteran separated from service in 1968. The medical evidence first shows treatment of the veteran for emotional problems in 1986; he was first diagnosed with a psychiatric disorder in 1997, approximately 29 years after his discharge from service. Overall, the Board is not able to grant the veteran's claim seeking entitlement to service connection for PTSD. It finds no current, clear diagnosis of PTSD. As a result, the veteran's claim must be denied. In reaching this decision, the Board has considered the doctrine of giving the benefit of the doubt to the veteran but does not find that the evidence is approximately balanced such as to warrant its application. The preponderance of the evidence is against his claim. 38 U.S.C.A. § 5107(b) (West 1991). ORDER The claim of entitlement to service connection for PTSD is denied. A. BRYANT Member, Board of Veterans' Appeals