Citation Nr: 0002535 Decision Date: 02/01/00 Archive Date: 02/10/00 DOCKET NO. 94-04 988 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, Puerto Rico THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, including post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Stanley Grabia, Associate Counsel INTRODUCTION The veteran had honorable service from August 1967 to August 1969. This matter initially came before the Board of Veterans' Appeals (the Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) San Juan, Puerto Rico Regional Office (RO). This matter was the subject of a remand in March 1998. Service connection for a neuropsychiatric disorder, described as an anxiety reaction disorder was severed by a rating decision in June 1975. A July 1978 Board decision denied entitlement to restoration finding that a neuropsychiatric disorder was not incurred in or aggravated by service. The Board in March 1998, reopened and remanded the veterans claim for service connection for a psychiatric disorder, including PTSD, for additional development. The claim is now returned to the Board for adjudication. FINDINGS OF FACT 1. The RO has developed all evidence necessary for an equitable disposition of the appellant's claim for service connection for PTSD. 2. The appellant's service medical records suggest some preexisting nervous symptoms, described as a nervous disorder. The veteran complained of nervousness within 2 weeks of entering active duty. There are no more complaints or diagnoses of any acquired psychiatric disorders during service. 3. The competent evidence of record does not indicate that the veteran engaged in combat. There are no combat awards or commendations of record. 4. The veteran has failed to submit any verifiable stressor information. 5. PTSD, while diagnosed in the past, is not presently demonstrated by the objective evidence of record. Other psychiatric disorders are also demonstrated in the evidence of record, but are not shown to be related to service. CONCLUSION OF LAW An acquired psychiatric disorder, including PTSD was not incurred in or aggravated by the appellant's active duty service based on the evidence of record. 38 U.S.C.A. §§ 1110, 5107 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.303, 3.304 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board finds that the veteran's claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1999); that is, he has presented a claim that is plausible. All evidentiary assertions are deemed credible for this determination. Further, he has not alleged nor does the evidence show that any records of probative value, which could be associated with the claims folder and that have not already been sought, are available. Service connection for PTSD requires a medical diagnosis of PTSD (presumed to include the adequacy of the PTSD symptomatology and the sufficiency of a claimed in-service stressor); credible supporting evidence that the claimed in- service stressor actually occurred; and medical evidence of a causal nexus between current symptomatology and the specific claimed in-service stressor. 38 C.F.R. § 3.304(f) (1998); Cohen v. Brown, 10 Vet. App. 128, 137 (1997); Samuels v. West, 11 Vet. App. 433, 435 (1998). It is noted that 38 C.F.R. § 3.304(f) has recently been revised. See 64 Fed. Reg. 32807-32808 (June 18, 1999) (codified at 38 C.F.R. § 3.304(f) (1999), effective March 7, 1997). The revisions still require the three essential elements set forth above, but with less formal evidentiary requirements. Thus, the Board may continue with consideration in this case without prejudice to the veteran. With respect to the first element under the old criteria, the United States Court of Appeals for Veterans Claims (formerly the United States Court of Veterans Appeals) (Court) has held that "a clear (that is, unequivocal) PTSD diagnosis by a mental-health professional must be presumed to have been made in accordance with the applicable DSM [Diagnostic and Statistical Manual of Mental Disorders] criteria as to both the adequacy of the symptomatology and the sufficiency of the stressor." Cohen, 10 Vet. App. at 139. Moreover, the Court concluded that "under the DSM-IV, the mental illness of PTSD would be treated the same as a physical illness for purposes of VA disability compensation in terms of predisposition toward development of that condition." Id. at 141 (incorporating the "eggshell plaintiff" rule to service connection awards). With regard to the second element, the evidence necessary to establish that the claimed stressor actually occurred varies depending on whether it can be determined that the veteran "engaged in combat with the enemy." 38 U.S.C.A. § 1154(b) (West 1991 & Supp. 1999). The Court has held that "[w]here 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'." Zarycki v. Brown, 6 Vet. App. 91, 98 (1993); 38 U.S.C.A. § 1154(b) (West 1991 & Supp. 1999); 38 C.F.R. § 3.304(d), (f) (1998); see also Gaines v. West, 11 Vet. App. 113 (1998) (determination of whether veteran engaged in combat with enemy is particularly significant in PTSD cases). If the claimed stressor is related to combat, under the old regulation, service department evidence that the veteran engaged in combat or that the veteran was awarded the Purple Heart, Combat Infantryman Badge, or similar combat citation was accepted, in the absence of evidence to the contrary, as conclusive evidence of the claimed inservice stressor. 38 C.F.R. § 3.304(f) (1999). Under the new regulation, it is required that the evidence establishes that the veteran engaged in combat with the enemy. However, if the "claimed stressor is not combat related, a veteran's lay testimony regarding in-service stressors is insufficient to establish the occurrence of the stressor and must be corroborated by 'credible supporting evidence'." Cohen, 10 Vet. App. at 142 (citing Moreau v. Brown, 9 Vet. App. 389, 395 (1996); Doran v. Brown, 6 Vet. App. 283 (1994)). A review of the appellant's service medical records reveal that the veteran reported a preexisting nervous disorder in pre-induction, and induction examinations. Within 2 weeks of entering service, he complained of a nervous disorder. The remainder of his period of service is entirely negative as to any complaints or treatment for any other acquired psychiatric disorders, including PTSD, injuries, or traumas. The separation examination is also negative for any psychiatric disabilities, although the nervous disorder is again reported in the medical history by the veteran. The service personnel records indicate that the veteran served in Vietnam, but was not engaged in combat. His commendations include the National Defense Service Medal, Good Conduct Medal, Republic of Vietnam Campaign medal, and M-14 Marksman's Badge. None of which are combat awards. He is listed as a food service specialist. At first, the Board notes that service connection for an anxiety reaction disorder, later revised to schizophrenia, undifferentiated was granted by a rating decision in February 1971. This was severed by the RO, in a June 1975 decision as it was determined that there was no evidence of a nervous condition during service, or an active psychosis within one year from date of separation. The Board, in July 1978, affirmed the RO decision finding that restoration of service connection for a psychiatric disorder, however classified was not warranted. In October 1991, the veteran attempted to reopen his claim for restoration of service connection for a neuropsychiatric disorder, described as a nervous disorder. In September 1992, the veteran was examined by a board of three VA psychiatrists. He did not bring up any specific complaints. While in Vietnam he reported working in the kitchen all the time. He reported some explosion that occurred one night close to his perimeter. He also saw some pictures after a grenade exploded, but was not apparently present. He reported several hospitalizations, and becoming very nervous because his mother was very sick after he returned from service. The examiners noted the veteran was appropriately dressed; clean; alert; in good contact; rather monotonous; superficial; vague; and projected a person strongly dependent on everything, and others. He had no thought disorders; was well oriented; and memory was intact. Retention; recall; intellect; and sensorium were clear. Basically, he projected a floating anxiety; a very dependent, and chronically depressed person. There were no suicidal ideations or risks, although he admitted suicidal and homicidal ideations on occasions. Concentration and judgment were impaired. He was diagnosed with depression and a strong personality dependence structure. In October 1992, the RO found that the appellant did not submit any new and material evidence to reopen the claim for a neuropsychiatric disorder. The RO restated the veteran's disorder as depression, claimed as PTSD, previously diagnosed as Schizophrenia. The results of a July 1993 VA PTSD examination were essentially the same as the September 1992 examination. The examiner however added that, "definitely there is no criteria in the history or symptoms of this veteran for a diagnosis of post traumatic stress disorder." In March 1996, the Board reopened the claim restating it as service connection for a psychiatric disorder, claimed as PTSD. The RO was to gather private medical records from Luis Torres Velez, M.D. who allegedly treated him at times from 1969 to the present. In addition, the RO was to get a medical opinion from his last VA psychiatric examiners as to the onset of his diagnosed depressive disorder. In a VA psychiatric opinion in October 1996, the physician stated, in essence, that the veteran apparently had a nervous disorder of some type prior to service. Service medical records including the induction examination gave a history of pains and nervousness since age 6. The records also contained; a VA psychiatric examination in December 1970, diagnosing anxiety reaction in a schizoid personality; a note from a Dr. Dixon, indicating treatment in 1964, 1965, and 1970 for anxiety; and a June 1971 VA mental health clinic notation diagnosing anxiety. The examiner noted treatment for nervous problems and anxiety before and after service. While the symptoms were present during service, there was no indication of aggravation. There was no evidence of a psychosis prior to September 1971. The event which precipitated the development of the veteran's psychotic symptoms was his mother's suicide. In March 1998, the Board reopened and remanded the veteran's claim based on new evidence received from Dr. Torres Velez which attributed the veteran's psychiatric impairment to service. There was medical evidence received that indicated a preexisting disorder, as well as evidence that the veteran exhibited signs of a manic depressive disorder within one year of discharge from service. A medical opinion was required after review of the whole record, which addressed the issue of aggravation of a preexisting disorder. In addition, while Dr. Torres offered a medical opinion, the basis for that opinion was not clear, as his medical records have not been received. A further attempt to get Dr. Torres' medical record's was to be made. And finally, a VA psychiatric examination to evaluate the etiology, nature and extent of any acquired psychiatric disorders was to be performed. In a VA psychiatric examination in February 1999, the examiner noted that the veteran's diagnoses of record included; malingering; dysthymia; and, major depression; and ruled out (R/O) PTSD; an anxiety disorder; and, a schizotypal personality disorder. A VA psychiatric board in September 1992, and July 1993 diagnosed a depressive disorder with strong dependent personality features. The examiner also noted a certificate of treatment from the Caguas Mental Health Clinic showing treatment from December 1992 to November 1996, and several notes from Dr. Torres- Velez, who was not a psychiatrist, and who gave multiple psychiatric diagnoses. The veteran was adequately dressed; clean; groomed; alert; anxious; and oriented x 3. His affect was constricted affect; attention was good; concentration and memory was fair. His speech was clear and coherent. The examiner noted that he did not give any specifics about any alleged stressors. The diagnoses was anxiety disorder; dependent personality disorder; with a GAF of 70. The examiner opined that based on his history, the medical opinions of file, as well as the current examination, the veteran's neuropsychiatric disorder preexisted service, and was a manifestation of his personality disorder. It continued through service due to his reaction over his parents' illnesses, and persisted afterwards. His mother's suicide aggravated his condition. Finally it was opined that the veteran did not meet the criteria for a diagnosis of PTSD, nor was there any documented evidence of aggravation of any neuropsychiatric disorder attributable to his period of service. Additional medical records on file reveal that the veteran had a long history of treatment and hospitalizations for various neuropsychiatric disorders; including anxiety reaction in a schizoid personality, moderate; and, schizophrenia, undifferentiated type. The following private medical letters and summaries are also noted; Several letters and statements from Luis Torres Velez, M.D., including a May 1992 letter noting that he had treated the veteran approximately 4 months after service and diagnosed him with major depression, psychoneurosis, and, a hallucinogenic disorder. A second letter dated in April 1997, which was essentially the same as the prior letter, but diagnosing him as psychoneurotic, manic-depressive, with psychosis, and, schizophrenic. No diagnosis of PTSD was offered. Certificates from the Caguas Mental Health Clinic received in August 1993, and in August 1998 both noting diagnoses of PTSD, and major depression with psychotic features. As noted previously, service connection for PTSD requires three elements: (1) a current medical diagnosis, (2) credible supporting evidence that the claimed in-service stressor occurred; and (3) medical evidence of a causal nexus between current symptomatology and the in-service stressor. The Board has reviewed the record in its entirety. It is significant, that while the medical certificates from the Caguas Mental Health Clinic, provides a diagnosis of PTSD, no medical opinion as to etiology is provided. In addition there is no credible supporting evidence that any claimed in- service stressors occurred. While the record contains past diagnoses of PTSD, there is no current indication of PTSD symptomatology. In any event, the veteran's stressors have not been verified. It is also noted that the diagnosis was made, based on the history given by the appellant. The appellant cannot be service-connected for PTSD where the evidence does not support any verifiable inservice combat related stressor. The criteria for a valid claim for PTSD, therefore, have not been met in this case. The Board is not required to accept the appellant's uncorroborated account of his claimed stressor(s) as a basis for substantiating his claim, notwithstanding health professionals who accept as truthful the appellant's reported service medical history for purposes of treatment and diagnosis. See Cohen, 10 Vet. App. at 142 (an opinion by a mental health professional based on a post-service examination of the veteran cannot be used to establish the occurrence of a stressor). See also Swann v. Brown, 5 Vet. App. 229, 233 (1993); Wood v. Derwinski, 1 Vet. App. 406 (1991). While the veteran has been diagnosed with PTSD in the past, he has no current diagnosis of PTSD. In addition, there is no evidence that he engaged in combat, or that the reported stressors actually occurred. The service records do not indicate the receipt of any combat citations, wounds, injuries, or traumas. The veteran's awards are the National Defense, Good Conduct, Vietnam Campaign medal, and M14 Marksmanship Badge, none of which indicate combat. His claim of stressors described as a nearby explosion, or seeing photographs of an explosion are not verifiable stressors. No evidence has otherwise been presented to support the occurrence of any inservice stressors. The evidence does not establish PTSD in service, or, in the separation examination. An alleged link set forth by the examiner between the claimed stressors and service is not in and of itself sufficient to grant service connection for PTSD. In this case, medical evidence does not supports a finding of any acquired psychiatric disorder in service, nor does the evidence show a nexus between any current psychiatric disorder and service or disease or injury incurred in service. As such, the veteran has not met one of the essential elements in establishing a claim of service connection for PTSD. 38 C.F.R. § 3.304(f). Pursuant to 38 U.S.C.A. § 5107(b), where, after review of all the evidence, 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. In this case, the Board finds that there is no approximate balance of the positive and negative evidence as to whether the veteran's claimed PTSD was incurred in service. Clearly, the preponderance of the evidence is against the claim. Thus, the Board concludes that the veteran's claim for service connection for PTSD must be denied. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for an acquired psychiatric disorder, including PTSD is denied. MICHAEL D. LYON Member, Board of Veterans' Appeals