Citation Nr: 0724962 Decision Date: 08/10/07 Archive Date: 08/20/07 DOCKET NO. 02-02 133 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUE Entitlement to service connection for an acquired psychiatric disability, to include post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and S.T. ATTORNEY FOR THE BOARD David S. Nelson, Counsel INTRODUCTION The appellant had active military service from August 1979 to September 1979. This matter comes before the Board of Veterans' Appeals (Board) from June 2001 and February 2004 rating decisions by the Togus, Maine Regional Office (RO) of the Department of Veterans Affairs (VA). In July 2006 the veteran testified at a Board hearing at the RO. This case was most recently before the Board in September 2006 and was remanded for additional development, to include scheduling the appellant for a VA examination. FINDING OF FACT The competent evidence of record does not demonstrate that the appellant has an acquired psychiatric disability (to include PTSD) related to service. CONCLUSION OF LAW Acquired psychiatric disability, including PTSD, was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1111, 1131, 1132, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.307, 3.309 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies in the instant case. Duty to Notify 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his or her possession that pertains to the claim. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). By correspondence dated in February 2003, April 2003, December 2003, February 2005, June 2005, September 2006, and November 2006, the appellant was informed of the evidence and information necessary to substantiate the claim, the information required to enable VA to obtain evidence in support of the claim, the assistance that VA would provide to obtain evidence and information in support of the claim, and the evidence that he should submit if he did not desire VA to obtain such evidence on his behalf. The VCAA letters informed the appellant that he should submit any medical evidence pertinent to his claim. While complete VCAA notice was not provided to the appellant prior to the initial adjudication, the claim was readjudicated after he received all critical notice, and he has had an opportunity to respond (see April 2007 supplemental statement of the case). The appellant has been provided with every opportunity to submit evidence and argument in support of the claim, and to respond to VA notices. The procedure outlined is not at odds with the principles espoused in Pelegrini. As the service connection claim adjudicated herein is denied, no disability rating or effective date will be assigned, and there can be no possibility of any prejudice to the appellant under the holding in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Duty to Assist The appellant's service medical and personnel records are associated with the claims file. The Board notes that the appellant declined an offer to provide additional information concerning PTSD as requested in a September 2006 RO letter. VA and private examinations with a medical opinion regarding a possible relationship between the disability on appeal and the veteran's military service have been undertaken. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The appellant has not referenced any other pertinent, obtainable evidence that remains outstanding. VA's duties to notify and assist are met. Accordingly, the Board will address the merits of the claim. Legal criteria Service connection is warranted if it is shown that a veteran has a disability resulting from an injury incurred or a disease contracted in active service, or for aggravation of a preexisting injury or disease in active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to prove service connection, a claimant must submit (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. Pond v. West, 12 Vet. App. 341, 346 (1999). Analysis Upon review of the claims file, the Board finds that the competent evidence of record does not demonstrate that the appellant has an acquired psychiatric disability (to include PTSD) related to service. In support of this observation, the Board has considered the appellant's most recent VA examination, undertaken in January 2007 at the specific request of the Board's September 2006 remand. At the January 2007 VA examination, the examiner, a VA psychiatrist, specifically indicated that he had reviewed the appellant's entire claims file and the Computerized Patient Record System (CPRS) as well. The examiner recorded the appellant's subjective complaints and noted the appellant's past psychiatric history, including the appellant's numerous psychiatric hospitalizations and medication regimens. A review of the appellant's social and occupational history was also undertaken. Following examination, the VA psychiatrist reported a diagnosis of Borderline personality disorder. The examiner also stated that the appellant did not meet the criteria for a diagnosis of PTSD under Sections C and D. The Board notes that personality disorders are not compensable disabilities (diseases or injuries) within the meaning of applicable legislation. 38 C.F.R. §§ 3.303(c) and 4.9. In short, the most recent examination of record, undertaken by an examiner with credentials equal to or exceeding any other examiner of record, has stated, following an examination of the appellant and review of the claims file, that the appellant has no current compensable psychiatric disability (for VA purposes). The Board acknowledges that other examinations associated with the appellant's claims file have indicated that the appellant has been diagnosed with depression, bipolar disorder, major depression, and dysthymic disorder. The Board, however, can find no such diagnoses until 1988, nearly a decade following service. Further, the Board can find no evidence that any examiner has linked such disability to service on a direct basis. Thus, the fact that the appellant has been previously diagnosed with such disability would not, by itself, be enough to prevail in this claim. The appellant's main assertion in this case, however, is that he had a preexisting psychiatric disability, to include PTSD, that was aggravated by his military service. In the alternative, he has contended that he has PTSD due to personal assault in service of being yelled at and slapped by a commanding officer. Both VA and private examiners have stated, and preservice records from the appellant's high school have shown, that the appellant had emotional problems prior to service. In particular, examiners have indicated that the appellant had PTSD prior to service. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and the claimed inservice stressor; and credible evidence that the claimed inservice stressor actually occurred. 38 C.F.R. § 3.304(f). A veteran is considered to be in sound health when examined, accepted, and enrolled for service-except as to defects, infirmities, or disorders noted at the time of his entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior to service, and was not aggravated by such service. 38 U.S.C.A. §§ 1111, 1132. In a precedent opinion, VAOPGCPREC 3-2003 (July 16, 2003), VA's General Counsel discussed the requirements for rebutting the presumption of sound condition when entering the military under 38 U.S.C. § 1111 and 38 C.F.R. § 3.304. The General Counsel held that, to rebut the presumption of sound condition under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The veteran claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. The provisions of 38 C.F.R. § 3.304(b) were amended effective May 4, 2005 (See 70 Fed. Reg. 23029 (May 4, 2005)) and are now consistent with 38 U.S.C.A. § 1111. VA's General Counsel went on to hold that the provisions of 38 C.F.R. § 3.306(b), providing that aggravation may not be conceded unless the pre-existing condition increased in severity during service, are not inconsistent with 38 U.S.C. § 1111. Section 3.306(b) properly implements 38 U.S.C. § 1153, which provides that a pre-existing injury or disease will be presumed to have been aggravated in service in cases where there was an increase in disability during service. The requirement of an increase in disability in 38 C.F.R. § 3.306(b) applies only to determinations concerning the presumption of aggravation under 38 U.S.C. § 1153 and does not apply to determinations concerning the presumption of sound condition under 38 U.S.C. § 1111. 38 U.S.C. § 1111 requires VA to bear the burden of showing the absence of aggravation. The initial question is whether the appellant's PTSD was present prior to service. The record discloses that the appellant's service entrance examination noted no psychiatric disability. In Crowe v. Brown, 7 Vet. App. 238 (1994), the Court indicated that the presumption of soundness attaches only where there has been an induction medical examination, and where a disability for which service connection is sought was not detected at the time of such examination. The Court noted that the regulation provides expressly that the term "noted" denotes only such conditions as are recorded in examination reports, and that history of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions. 38 C.F.R. § 3.304(b)(1). In the absence of any findings pertaining to psychiatric disability at the time of the veteran's entry into service, the Board concludes, accordingly, that the presumption of soundness at entrance attaches. However, the medical evidence of record that has specifically addressed the question clearly and unmistakably shows that PTSD existed prior to service. This conclusion is supported by both VA (August 2002) and private examiners (April 2004). These examiners pointed to specific preservice stressors (in particular, the suicide of the appellant's sister) in arriving at their conclusions that the veteran had PTSD, and had such disability prior to service. The Board concludes, accordingly, that the appellant's PTSD (although, as noted by the April 2004 private examiner, PTSD was not a recognized diagnosis at the time of his entry to service) was present prior to service. As discussed above, VA has a duty to demonstrate by clear and unmistakable evidence that a disease or injury existed prior to service and was not aggravated in service under 38 U.S.C. § 1111 prior to the appellant's requirement to show an increase in a pre-existing disability under 38 C.F.R. § 3.306(b). In other words, VA must now show by clear and unmistakable evidence that the appellant's preexisting PTSD was not aggravated by his service, in order to rebut the presumption of soundness on induction. Service medical records show that just days after his service induction, the appellant was evaluated for cephalgia, syncope, vertigo, and hyperventilation. Mental status examination revealed an alert, fully oriented youth of dull normal intellectual ability. The appellant reported no prior psychiatric history. He reported that his brother was committed to a mental health facility when his sister committed suicide. The examiner remarked that the appellant appeared mildly dysphoric. He described him as an immature, excitable, over reactive, dependent, and occasional histrionic man, with limited tolerance for stress. Physical complaints appeared to be of a psychogenic origin and coincided with emotional lability under stress. Evaluation reflected a pattern of behavior consistent with an emotional instability reaction in a hysterical personality. There was no evidence of current, overt psychosis, major affective disorder, suicidal ideation, or organic brain dysfunction. The Board finds that the service medical records, at most, document only that the appellant experienced a flare-up of his symptoms during his service as a manifestation of PTSD which was present prior to service. In addition, consistent with the finding of a flare-up during service, whether or not due to being yelled at and/or slapped by a commanding officer, there is no objective evidence of continuance of such flare-up during the years following the appellant's discharge from service so as to establish chronic aggravation. See Savage, supra (requiring medical evidence of chronicity and continuity of symptomatology). The Board again observes that no formal psychiatric diagnosis is of record prior to 1988. While health professionals (including the April 2004 private examiner and those in July 2006) have stated that the veteran's PTSD symptoms were exacerbated by service, the Board notes that no examiner has suggested that the veteran's inservice PTSD symptoms chronically increased in severity or reflected anything inconsistent with PTSD. As such, the Board finds that there is clear and unmistakable evidence that the veteran's PTSD preexisted service, and that it was not aggravated by service. In short, the evidence does not show that an acquired psychiatric disorder, including PTSD, was not incurred in or aggravated by active service. While the Board does not doubt the sincerity of the appellant's belief regarding the service connection issue that was denied, and the appellant's statements and board hearing testimony in this regard have been reviewed, the appellant is not competent to offer evidence which requires medical knowledge, such as the question of whether a chronic disability is currently present or a determination of etiology. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). In reviewing the foregoing, the Board has been cognizant of the "benefit of the doubt" rule, but there is not such an approximate balance of the positive evidence and the negative evidence to permit a favorable determination. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for an acquired psychiatric disability, to include PTSD, is denied. ____________________________________________ U.R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs