BVA1400029: Present Disability (PTSD)

Citation Nr: 1400029 Decision Date: 01/02/14 Archive Date: 01/16/14 DOCKET NO. 10-16 586

FINDINGS OF FACT …

5. The Veteran’s lay account of exposure to enemy mortar and gunfire attacks in Vietnam are credible and consistent with the places, types, and circumstances of the Veteran’s service to include his military occupational specialty (MOS), unit, and assignment and duties, without clear and convincing evidence to the contrary.

6. The most probative evidence establishes that the Veteran does not have a current diagnosis of PTSD in accordance within the applicable VA regulation.

CONCLUSIONS OF LAW …

5. PTSD was not incurred in active service. 38 U.S.C.A. §§ 1110, 1154, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 4.125 (2013).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS …

With respect to the criteria of a current diagnosis of PTSD, the threshold consideration for any service connection claim is the existence of a current disability. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303; Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).
In particular, aside from verification of an in-service stressor, current medical evidence diagnosing PTSD in accordance with 38 C.F.R. § 4.125(a) (i.e., DSM-IV) is required, as well as competent evidence of a nexus between current PTSD symptomatology and his verified in-service stressor. 38 C.F.R. § 3.304(f). See also Cohen v. Brown, 10 Vet. App. 128 (1997). Under the amended PTSD regulation, effective July 13, 2010, a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, must confirm that the claimed stressor is adequate to support a diagnosis of PTSD and that a Veteran’s symptoms are related to the claimed stressor, in order to warrant service connection for PTSD. 38 C.F.R. § 3.304(f)(3) (2013).

With regard to a diagnosis of PTSD based on his in-service stressors from Vietnam, the record reflects several favorable and unfavorable medical opinions of record. However, upon review, in the present case, the Board finds the most probative medical evidence weighs against a finding that the Veteran has a PTSD diagnosis in accordance with 38 C.F.R. § 4.125(a) (i.e., DSM-IV).

The Board must determine, as a question of fact, both the weight and credibility of the evidence. Equal weight is not accorded to each piece of evidence contained in a record; every item does not have the same probative value. The Board must account for the evidence which it finds to be persuasive or unpersuasive, analyze the credibility and probative value of all material evidence submitted by and on behalf of a claimant, and provide the reasons for its rejection of any such evidence. See Struck v. Brown, 9 Vet. App. 145, 152 (1996); Caluza v. Brown, 7 Vet. App. 498, 506 (1995); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994); Abernathy v. Principi, 3 Vet. App. 461, 465 (1992); Simon v. Derwinski, 2 Vet. App. 621, 622 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164, 169 (1991).

In evaluating the probative value of competent medical evidence, the Court has stated, in pertinent part:

The 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 adjudicators; . . .

Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). It is not error for the Board to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons or bases. See Owens v. Brown, 7 Vet. App. 429, 433 (1995).

With regard to the positive evidence, in 2010 and 2011, a private psychologist, Dr. A.G., PhD., diagnosed the Veteran with PTSD due to his Vietnam experiences. Dr. A.G. believed the Veteran met the DSM-IV criteria for PTSD. She added that his particular post-service line of work as a firefighter makes it more likely for him to experience PTSD symptoms or exacerbation of earlier trauma. She noted symptoms, such as hypervigilance, reduced sleeping, nightmares, and anxiety. She indicated that the Veteran was no longer able to work as a firefighter due to his PTSD symptoms. The conclusion of Dr. A.G. provides some evidence in support of the PTSD claim.

On the other hand, a December 1991 VA psychological examiner diagnosed with Veteran with generalized anxiety disorder, but would not confirm a diagnosis for PTSD. However, in rendering this opinion, the VA examiner did not have access to the Veteran’s claims folder or any of the treatment records immediately after discharge reflecting the Veteran’s complaints of nervousness. Thus, this VA opinion is entitled to limited probative value. …

Moreover, a September 2011 VA psychological examiner found that the Veteran’s symptoms did not meet the diagnostic criteria for PTSD under the DSM-IV or any other mental disorder. After discussing the Veteran’s stressors, the VA examiner concluded that the Veteran’s stressors were not sufficiently traumatic and were not adequate to support a diagnosis of PTSD for this particular Veteran. Notably, the VA examiner indicated that the Veteran also answered in the negative regarding every single criterion for PTSD when specifically queried by the examiner about each and every symptom. The examination revealed that he did not meet the DSM-IV criterion A through E for PTSD. In particular, the Veteran did not persistently reexperience his traumatic events from Vietnam; there was no persistent avoidance of stimuli associated with the trauma or numbing of general responsiveness; there were no persistent symptoms of increased arousal; and the Veteran did not meet the full criteria for PTSD. The Veteran also did not endorse a single symptom of clinical depression. This examination also provides strong evidence against the existence of a current PTSD diagnosis attributable to in-service stressors from Vietnam.

Upon review, in the present case, the Board finds the most probative medical evidence weighs against a finding that the Veteran has a PTSD diagnosis in accordance with 38 C.F.R. § 4.125(a) (i.e., DSM-IV). Overall, the November 2010 and September 2011 VA psychological examinations in particular were thorough, supported by an explanation, and considered the Veteran’s history and relevant longitudinal complaints. The VA opinions and treatment records outweigh the private treatment of record on the issue of whether the Veteran has a PTSD diagnosis in accordance with DSM-IV. After an extensive interview and testing, the VA examiners provided greater detail in assessing whether the Veteran met each of the DSM-IV criteria (A through E) for PTSD than the private psychologist, Dr. A.G.

With regard to lay evidence, the Board notes that lay persons are not categorically incompetent to speak on matters of medical diagnosis or etiology. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Board must consider the type of condition specifically claimed and whether it is readily amenable to lay diagnosis or probative comment on etiology. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). In this vein, the Board acknowledges the Veteran is competent to report psychiatric symptoms both during and after service. See 38 C.F.R. § 3.159(a)(2); Jandreau, 492 F.3d at 1377 (discussing that Veteran is competent to report a contemporaneous medical diagnosis); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (discussing general competency of a Veteran to report psychiatric symptoms). That notwithstanding, in the instant case, the Board has found the Veteran’s lay statements are less persuasive than the post-service medical evidence finding that the Veteran does not meet the DSM-IV criteria for PTSD. The Federal Circuit has held that the Board can favor competent medical evidence over lay statements offered by the Veteran, as long as the Board neither deems lay evidence categorically incompetent nor improperly requires a medical opinion as the sole way to prove causation. King v. Shinseki, 700 F.3d 1339, 1344 (2012). Moreover, although the Veteran is competent to describe his psychiatric symptoms, by regulation, PTSD is a condition that can only be diagnosed by a medical professional, according to 38 C.F.R. § 3.304(f).

Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is service connection for PTSD. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

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