Citation Nr: 0519142 Decision Date: 07/14/05 Archive Date: 07/20/05 DOCKET NO. 02-14 907 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD Joseph Michael Horrigan INTRODUCTION The veteran had active duty from October 1966 to October 1969. He received the Purple Heart medal, and Combat Infantryman Badge. This appeal comes before the Board of Veterans' Appeals (Board) from an August 2002 rating decision of the Buffalo, New York, Regional Office (RO) of the Department of Veterans Affairs (VA) which denied service connection for PTSD. The Board remanded this case to the RO for further development in November 2003. It is now before the Board for further appellate consideration. FINDING OF FACT The veteran does not have a diagnosis of PTSD. CONCLUSION OF LAW PTSD was not incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304(f), 4.125(a) (2004). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA The Veterans Claims Assistance Act (VCAA) was enacted on November 9, 2000. Pub. L. 106-475, 114 Stat. 2099 (Nov. 9, 2000). Among other things, the VCAA eliminated the well- grounded-claim requirement and modified the Secretary's duties to notify and assist claimants. The VCAA provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A. It also requires VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. 38 U.S.C.A. § 5103(a) (West 2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-1 (2004) the United States Court of Appeals for Veterans Claims (Court) found that a VCAA notice letter consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) (2003) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence or information in the claimant's possession that pertains to the claim. In May 2002 and March 2004 letters, the RO and the Appeals Management Center (AMC), respectively, informed the veteran of the evidence needed to substantiate his claim, and of who was responsible for obtaining what evidence. In addition, the letter specifically told him that if he had any evidence that pertained to his claims, he should send it to the AMC. The statement of the case, and the supplemental statement of the case, further informed him of the evidence needed to substantiate his claims. In Pelegrini the majority also held that the VCAA notice, as required by 38 U.S.C.A. § 5103(a), should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In this case, some of the VCAA notice was provided after the initial rating action. The veteran had the opportunity to submit additional argument and evidence after all the VCAA notice was provided. The delayed notice did not, therefore, prejudice him. See also Mayfield v. Nicholson, 19 Vet. App. 103 (2005) (per curium) (en banc) (holding that delayed notice is generally no prejudicial to a claimant). Moreover, it does not appear from a review of the record that any clinical evidence relevant to the veteran's current claims is available, but not yet associated with the claims folder. Under the VCAA, VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002). The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The veteran has not been afforded a VA examination. As will be discussed below there is no evidence of any current signs or symptoms of PTSD. Factual Background The veteran's service medical records contain no findings or diagnosis of any psychiatric disability, including PTSD. On the veteran's September 1969 examination prior to separation from service no pertinent abnormalities were reported. He was evaluated as psychiatrically normal on the clinical evaluation. Review of the post service clinical record reveals no findings or diagnosis of any psychiatric disability, to include PTSD. The veteran's claim for service connection, notice of disagreement, and substantive appeal were completed by his representative, and report no treatment for, or current symptoms of, PTSD. Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. The veteran's claim was filed in May 2002 and is subject to the amended regulations governing entitlement to service connection for PTSD. 38 C.F.R. § 3.304(f). That regulation was amended, effective March 7, 1997, and provides that: Service connection for post-traumatic stress disorder requires medical evidence diagnosing the condition in accordance with § 4.125(a) of this chapter; 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. 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. 38 C.F.R. § 3.304(f) (2004). The evidence necessary to establish the occurrence of a stressor during service to support a claim of entitlement to service connection for PTSD will vary depending on whether the veteran "engaged in combat with the enemy." See Gaines v. West, 11 Vet. App. 353, 358 (1998); Hayes v. Brown, 5 Vet. App. 60, 66 (1993). If it is determined through military citation or other supportive evidence that a veteran engaged in combat with the enemy, and the claimed stressor(s) are related to combat, the veteran's lay testimony regarding the reported stressors must be accepted as conclusive evidence as to their actual occurrence and no further development or corroborative evidence will be necessary, provided that the testimony is found to be satisfactory and consistent with the circumstances, conditions or hardships of such service. 38 U.S.C.A. § 1154(b) (West 1991); Doran v. Brown, 6 Vet. App. 283, 289 (1994); 38 C.F.R. § 3.304(d)(f). Review of the record indicates that the veteran received a Purple Heart medal and a Combat Infantrymen Badge and, as such he is shown to have engaged in combat. His claimed stressor, namely the wound that resulted in his award of the Purple Heart medal is consistent with participation in combat. Of course, there is also supporting evidence for the claimed stressor, in the form of the award of the Purple Heart, and service medical records documenting the injury. The missing element in this case is a diagnosis of PTSD. The record contains no evidence of any psychiatric symptomatology, let alone that consistent with PTSD. The veteran has not reported any treatment for, or symptoms of, PTSD. Without any competent evidence showing that the veteran currently has PTSD, it is apparent that the weight of the evidence is against the claim for service connection. It must, therefore, be denied. ORDER Service connection for PTSD is denied. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs