Citation Nr: 0915790 Decision Date: 04/27/09 Archive Date: 05/07/09 DOCKET NO. 04-41 842A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder. 2. Entitlement to service connection for post-traumatic stress disorder (PTSD). 3. Entitlement to service connection for residuals, cold injury, left lower extremity. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The veteran served on active duty from February 1944 to April 1946, and from February 1948 to March 1948. This matter is before the Board of Veterans' Appeals on an appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In June 2003, the RO denied the Veteran's claim for service connection for residuals, cold injury, left lower extremity. In February 2004, the RO denied the Veteran's claims for service connection for an acquired psychiatric disorder, and post-traumatic stress disorder (PTSD) (the Board considers these two separate issues as they are based on different criteria). In March 2008, the Board remanded the claims for additional development. In February 2008, the Veteran was afforded a hearing before John J. Crowley, who is the Veterans Law Judge rendering the determination in this claim and was designated by the Chairman of the Board to conduct that hearing, pursuant to 38 U.S.C.A. § 7102(b) (West 2002). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2008). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Board did receive the Veteran's statement of April 2009, prior to making this decision. FINDINGS OF FACT 1. The Veteran does not have PTSD. 2. The Veteran does not have an acquired psychiatric disorder (other than PTSD) as a result of his service. 3. The Veteran does not have residuals, cold injury, left lower extremity, as the result of disease or injury that was present during his active military service from February 1944 to April 1946 or from February 1948 to March 1948. CONCLUSIONS OF LAW 1. PTSD was not incurred or aggravated during the Veteran's active military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f) (2008). 2. An acquired psychiatric disorder (other than PTSD) was not incurred or aggravated during the Veteran's active military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2008). 3. Residuals, cold injury, left lower extremity, were not incurred in or aggravated by active military service, nor may in-service occurrence be presumed. 38 U.S.C.A. §§ 1110, 1112, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran asserts that service connection is warranted for an acquired psychiatric disorder, PTSD, and residuals of a cold injury to the left lower extremity. The Board initially notes that in April 2009, the Board received additional argument from the Veteran, accompanied by a page from a January 1947 VA examination report, without a waiver of RO review. However, this medical evidence was of record prior to the RO's June 2003 and February 2004 rating decisions that are currently on appeal, and is duplicative. Therefore, a remand for the RO to consider this evidence is not required. See 38 C.F.R. § 20.1304(c) (2008). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted on the basis of a post-service initial diagnosis of a disease, when "all of the evidence, including that pertinent to service, establishes that the disease was incurred during service." See 38 C.F.R. § 3.303(d). In addition, certain chronic diseases, including a psychosis, may be presumed to have been incurred during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Applicable regulations provide that 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 an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. § 3.304(f). Personality disorders are not diseases or injuries in the meaning of applicable legislation for disability compensation purposes. 38 C.F.R. §§ 3.303(c), 4.9 (2008); Winn v. Brown, 8 Vet. App. 510, 516 (1996), Beno v. Principi, 3 Vet. App. 439 (1992). The Board notes that as used herein, the term "acquired psychiatric disorder" is intended to exclude personality disorders. The law provides that, in the case of any veteran who engaged in combat with the enemy in active service, satisfactory lay or other evidence of an injury incurred in service shall be accepted as sufficient proof of service incurrence of the injury if the evidence is consistent with circumstances of service and notwithstanding that there is no official record of service incurrence of the injury. 38 U.S.C.A. § 1154(b); see also VAOPGCPREC 12-99, 65 Fed. Reg. 6256-6258 (2000). The Veteran's discharge, and separation qualification record (WD AGO Form 100), indicate that he served as a cannoneer and antiaircraft machine gunner with the 101st Airborne Division, and that he served in the Ardennes, Rhineland, and Central Europe campaigns. His decorations include the European African Middle Eastern Service Medal with three bronze stars. Accordingly, participation in combat is established and the Veteran is entitled to the presumptions at 38 U.S.C.A. § 1154(b). However, the Court has held that 38 U.S.C.A. § 1154 does not alter the fundamental requirements of a diagnosis, and a medical nexus to service. See Brock v. Brown, 10 Vet. App. 155, 162 (1997); Libertine v. Brown, 9 Vet. App. 521 (1996). The Board will first analyze the claims for an acquired psychiatric disorder, and PTSD. The Veteran's service treatment reports from his first period of active duty do not show any relevant treatment. The Veteran's separation examination report, dated in April 1946, shows that his psychiatric condition was noted to be normal. The medical evidence dated between the Veteran's first and second periods of active duty consist of VA reports, dated in 1947. This evidence shows that the Veteran was hospitalized at a VA facility for treatment of psychiatric symptoms between February and March of 1947, and between October and December of 1947. The impressions for the first period of hospitalization were personality disorder, paranoid trend, schizoid trend, and psycopathy. An October 1947 VA treatment report contains diagnoses of inadequate personality, characterized as moderate and chronic, manifested by shyness, reticence, insecurity, inadaptability, inaptness and social incompatibility. Service treatment reports from the second period of active duty include an entrance examination report, dated in February 1948, which does not contain any relevant findings. There is no record of any treatment for psychiatric symptoms during the Veteran's second period of active duty; service treatment reports indicate that he was discharged due to a heart murmur. A separation examination report is not of record. The medical evidence dated after the Veteran's second period of active duty consists of VA and non-VA reports, dated between 1964 and 2009. This evidence includes private medical reports from Lee County Mental Health, dated between 1972 and 1979, which show that the Veteran received treatment for psychiatric symptoms. These reports do not contain a diagnosis, but note paranoid delusions. Private treatment reports, and prescription forms, dated between 1983 and 1988, also indicate that the Veteran was receiving psychiatric treatment. The Veteran received additional psychiatric treatment from VA in 1989, with a diagnosis of paranoid schizophrenia. He was given medications that included Haldol. Private and VA reports, dated beginning in 1998, show ongoing treatment for psychiatric symptoms. A 1999 CA report from a social worker essentially notes possible senile dementia. A statement from the Ruth Cooper Center (RCC), dated in October 2003, indicates that the Veteran was treated for psychiatric symptoms between 1971 and 1995 (an RCC statement, received in December 2003, states that the Veteran's treatment records are not available). Reports from N.E.P., M.D., dated between 1998 and 2008, show that the Veteran received treatment for psychiatric symptoms. In several statements, he asserts that the Veteran has an acquired psychiatric disorder that is related to his service. These reports do not indicate that Dr. N.E.P. determined that the Veteran has PTSD. A VA examination report, dated in July 2008, shows that the physician indicated that the Veteran's C-file had been reviewed. The report shows that the Veteran stated that during service he sustained a concussion from a nearby exploding artillery shell. The Axis I diagnoses were anxiety disorder NOS (not otherwise specified), and dementia NOS. The physician concluded that is was less likely as not (less than 50/50 probability) that his anxiety disorder was caused by or a result of his reported concussion sustained during service. He further noted that the Veteran's dementia was of more recent onset, that it is unrelated to military service, that it now aggravates his anxiety, and that the symptoms of these two disorders (anxiety and dementia) are now intertwined. VA progress notes, dated between 2008 and 2009, note that the Veteran had a TIA (transient ischemic attack) in 2007, and contain assessments that include anxiety, progressive dementia, and paranoid personality. The claims files contain several lay statements. A statement, dated in 1978, shows that the author essentially states that he served with the Veteran, and that the Veteran was socially withdrawn. Another statement indicates that the Veteran displayed psychiatric symptoms in 1973. With regard to the claim for PTSD, the Board finds that the claim must be denied because the preponderance of the evidence shows that the Veteran does not have PTSD. See Gilpin v. West, 155 F.3d 1353 (Fed.Cir. 1998) (holding that under 38 U.S.C.A. §§ 1110 and 1131, the veteran must submit proof of a presently existing disability resulting from service in order to merit an award of compensation). The Board considers the July 2008 VA examination report to be highly probative evidence showing that the Veteran does not have PTSD. This report is the only competent opinion of record that was based on a review of the Veteran's claims files. See generally Hampton v. Gober, 10 Vet. App. 481 483 (1997) (noting that a medical examiner must consider the records of prior medical examinations and treatment in order to ensure a fully informed opinion); Schroeder v. Brown, 6 Vet. App. 220, 225 (1994); Green (Victor) v. Derwinski, 1 Vet. App. 121, 123 (1991). Furthermore, to the extent that the July 2008 VA examiner concluded that the Veteran does not have PTSD, this is corroborated by a number of VA Progress notes dated between 2004 and 2009, which contain notations of anxiety and a personality disorder (not PTSD). The VA progress notes also include several fairly detailed VA psychiatric consultation reports, dated between 2003 and 2004, which show that the Veteran was determined to have a paranoid disorder NOS, an anxiety disorder NOS, and a paranoid personality. In addition; an April 2004 VA progress note indicates that the Veteran had a negative PTSD screen. Accordingly, the Board finds that that the preponderance of the evidence shows that the Veteran does not have PTSD, and that the claim must be denied. In reaching this decision, the Board has considered two notations made by a VA social worker of "PTSD symptoms" in 2008, as well as a January 2004 letter from A.M., Ph.D., which states that, "I feel that he shows some symptoms of post-traumatic stress disorder (PTSD)." However, Dr. A.M. further notes that he is a neuropsychologist and not a prescribing physician, and that the Veteran's case contained evidence of "a pattern strongly indicative of Alzheimer's Dementia," and depression. He further stated that the assessment of PTSD should be pursued by Dr. N.E.P. (Dr. N.E.P.'s reports do not contain a diagnosis of PTSD). In summary, the probative value of this evidence is greatly reduced by the fact that it is clearly equivocal in its terms, and that none of it is shown to have been based on a review of the Veteran's claims files. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion.). Simply stated, the Board finds, based on a review of all medical records, that the findings which indicate the Veteran does not have PTSD outweigh the medical evidence to the effect that the Veteran may have PTSD. The Board therefore finds that this evidence is outweighed by the contrary evidence of record, that the preponderance of the evidence shows that the veteran does not have PTSD, and that the claim must be denied. Gilpin. There is no evidence to show that the Veteran was treated for psychiatric symptoms during his first period of active duty service. There is no evidence to show that an acquired psychiatric disorder was "noted" upon entrance into his second period of active duty service, Crowe v. Brown, 7 Vet. App. 238, 245 (1994), and the Veteran is therefore entitled to a presumption of soundness at service entrance for his second period of active duty. See 38 U.S.C.A. §§ 1111, 1137 (West 2002). Furthermore, as the records of treatment dated between the Veteran's first and second periods of active duty do not clearly note anything other than a personality disorder (which is not a disability for VA purposes) (38 C.F.R. § 3.303(c); Beno), the Board is unable to find VAOPGCPREC 3- 2003, 69 Fed. Reg. 25178 (2004) is applicable to this case. The Board finds that the July 2008 VA examination report is highly probative evidence which shows that the Veteran does not have an acquired psychiatric disorder due to his service. This report shows that the Veteran was examined, and that his relevant history was obtained. The examiner determined that the Veteran's Axis I diagnoses were anxiety disorder NOS, and dementia NOS. The physician essentially concluded that the Veteran's anxiety and dementia were not related to his service. This opinion is the only report shown to have been based on a review of the Veteran's claims files, or any other detailed and reliable medical history. Prejean. In addition, the earliest evidence of treatment for an acquired psychiatric disorder is in 1971. This is about 23 years after separation from service, and this lengthy period without treatment is evidence that there has not been a continuity of symptomatology, and it weighs against the claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Finally, there is no medical evidence to show that a psychosis was manifest to a compensable degree within one year of separation from service. See 38 C.F.R. §§ 3.307, 3.309. Simply stated, the Board finds that the post-service medical record provides highly probative evidence against this claim. In reaching this decision, the Board has considered the statements of Dr. N.E.P., which essentially appear to indicate that the Veteran has psychiatric symptoms due to his service. Overall, these statements are vaguely worded, and they focus on different inservice events. Specifically, an October 2003 statement merely asserts that the Veteran has an anxiety disorder "directly related to his military experiences." No further explanation was provided. The Veteran reported to Dr. N.E.P. that "he was the subject of some experiment to change people's sex." A January 2006 statement from Dr. N.E.P. only mentions that the Veteran has "continuing upset over his belief that two fellow soldiers in the military accused him unjustly of sexual behaviors and that this slander followed him through as an adult." A June 2008 statement appears to indicate that the Veteran has psychiatric symptoms related to an artillery shell which killed two of his friends in combat. The probative value of this evidence is decreased by the fact that Dr. N.E.P. has not reconciled the bases for his opinions, and that none of them are shown to have been based on a review of the Veteran's claims files, or any other detailed and reliable medical history. Prejean. Finally, Dr. N.E.P.'s statements were presumably reviewed by the July 2008 VA examiner, who determined that the Veteran does not have an acquired psychiatric disorder related to his service. Accordingly, the Board finds that that the preponderance of the evidence is against the claim for an acquired psychiatric disorder, and that the claim must be denied. With regard to the claim for residuals, cold injury, left lower extremity, the Veteran asserts that he was treated for frostbite in Düsseldorf, Germany, at which time his feet were frozen to his boots. See Veteran's VA Form 9, received in October 2007. The Veteran's service treatment reports from his first period of active duty do not show any relevant treatment. The Veteran's separation examination report, dated in April 1946, indicates that his skin did not have any relevant defects, that his neurological condition was normal, and it indicates that he had no musculoskeletal defects. There is no relevant medical evidence dated between the Veteran's first and second periods of active duty. The Veteran's service treatment reports from his second period of active duty do not show any relevant treatment. A separation examination report is not of record. The post-service medical evidence consists of VA and non-VA reports, dated between 1964 and 2009. Reports from Dr. N.E.P., dated between 2001 and 2002, note possible "poly myalgia," "rhuematica," and "fibro myalgic symptoms," as well as the presence of (otherwise unspecified) osteoarthritis. See also VA progress notes, dated between 2008 and 2009 (noting osteoarthritis). The Board finds that the preponderance of the evidence shows that the Veteran does not have residuals, cold injury, left lower extremity. Gilpin. His assertion of treatment for frostbite during service is credible. 38 U.S.C.A. § 1154(b). However, there is no competent evidence of a diagnosis, or of a medical nexus to service. Brock; Libertine. In this regard, there is no competent evidence to show that fibromyalgia, polymyaliga, rheumatica, or osteoarthritis, are related to inservice cold exposure. Accordingly, the Board finds that the preponderance of the evidence is against the claim, and that the claim must be denied. There is simply nothing to indicate that the Veteran now has a problem related to his frostbite in service, and there is evidence against such a finding in the form of treatment records that fail to indicate such a problem during or after service. As the preponderance of the evidence is against the claims, the benefit of the doubt doctrine is not applicable, and the claims must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). With respect to the Veteran's own contentions, and the lay statements, a layperson is generally not capable of opining on matters requiring medical knowledge. Bostain v. West, 11 Vet. App. 124, 127 (1998) citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). 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 (Fed. Cir. 2007). The issues on appeal are based on the contentions that an acquired psychiatric disorder, PTSD, and residuals, cold injury, left lower extremity, were caused by service, which ended in 1948 (more than 50 years ago). In this case, while the Veteran is competent to report that he was treated for frostbite, and that he perceived psychiatric or left lower extremity symptoms during service, when the Veteran's service medical records (which show no relevant treatment), and his post-service medical records are considered (which indicate that he does not have PTSD, or residuals, cold injury, left lower extremity, that the earliest relevant evidence of treatment for an acquired psychiatric disorder (i.e., other than a personality disorder) is dated no earlier than 1971, and which do not contain competent credible evidence of a nexus between residuals, cold injury, left lower extremity, and the Veteran's service), the Board finds that the medical evidence outweighs the Veteran's contentions that the claimed conditions are related to his service. Duties to Notify and Assist The Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2008). The notification obligation in this case was accomplished by way of a letter from the RO to the Veteran dated in March 2003 (residuals, cold injury, left lower extremity), December 2003 (PTSD), and April 2008 (acquired psychiatric disorder, and residuals, cold injury, left lower extremity). Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). The RO also provided assistance to the appellant as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. It appears that all known and available service treatment reports, and post-service records relevant to the issues on appeal have been obtained and are associated with the Veteran's claims files. The RO has obtained the Veteran's VA and non-VA medical records. With regard to the claim for an acquired psychiatric disorder, VA has obtained an etiological opinion. As the Veteran has been determined not to have PTSD, an etiological opinion is not required. See 38 C.F.R. § 3.156(d) (2008). With regard to the claim for residuals, cold injury, left lower extremity, as there is no competent evidence to show that the Veteran has this disability, or that this disability is related to service, which ended in 1948, an examination and etiological opinion need not be obtained. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The appellant and his representative have not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal, and have not argued that any error or deficiency in the accomplishment of the duty to assist has prejudiced him in the adjudication of his appeal. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). Based on the foregoing, the Board finds that the Veteran has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER The appeal is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs