Citation Nr: 0810813 Decision Date: 04/02/08 Archive Date: 04/14/08 DOCKET NO. 05-02 836 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for post-traumatic stress disorder. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD T. Azizi-Barcelo, Associate Counsel INTRODUCTION The veteran, who is the appellant, served on active duty from September 1965 to September 1967. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in January 2004 of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2008, the veteran testified before the undersigned Veterans Law Judge. The transcript is in the record. FINDING OF FACT Post-traumatic stress disorder is not currently shown. CONCLUSION OF LAW Post-traumatic stress disorder is not due to an injury or a disease that was incurred in service. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.304(f) (2007). Veterans Claims Assistance Act of 2000 (VCAA) The VCAA amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claim. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159. Duty to Notify Under 38 U.S.C.A. § 5103(a), VA must notify the claimant of the information and evidence not of record that is necessary to substantiate the claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. Under 38 C.F.R. § 3.159, VA must request that the claimant provide any evidence in the claimant's possession that pertains to the claim. The VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided pre- adjudication VCAA notice by a letter, dated in September 2003. The veteran was notified of the evidence needed to substantiate the claim of service connection for post-traumatic stress disorder, namely, evidence of current disability; evidence of an injury or disease or event in service, causing injury or disease, or an injury, or a disease was made worse during service; and evidence of a relationship between the current disability and the injury, disease, or event in service. The notice included a questionnaire for post-traumatic stress disorder in order to elicit information to corroborate the alleged in- service stressors. The veteran was notified that VA would obtain service records, VA records, and records of other Federal agencies and that he could submit private medical records or authorize VA to obtain private medical records on his behalf. He was asked to submit any evidence that would include that in his possession. The notice included the provision for the effective date of the claim, that is, the date of receipt of the claim. As for content of the VCAA notice, the document substantially complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (the relative duties of VA and the claimant to obtain evidence, except for identifying the evidence needed to substantiate a claim); of Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112 (2004) (38 C.F.R. § 3.159 notice); and of Dingess v. Nicholson, 19 Vet. App. 473 (notice of the elements of the claim, except for the degree of disability assignable. To the extent that the VCAA notice did not include the degree of disability assignable, as the claim of service connection is denied no disability rating can be awarded as a matter of law and therefore there is no possibility of any prejudice to the veteran with respect to the content error as to degree of disability assignable. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim. The veteran was afforded a VA examination in March 2007. As the veteran has not identified any additional evidence pertinent to his claim, not already of record, and as there are no additional records to obtain, the Board concludes that the duty-to-assist provisions of the VCAA have been complied with. REASONS AND BASES FOR FINDING AND CONCLUSION Factual Background The service personnel records disclose that the veteran served in Vietnam as a cannoneer from Ocotber 1966 to September 1967. The service medical records, including the report of separation examination, contain no complaint, finding, history, or treatment of a psychiatric disorder. After service, in July 2003, the veteran underwent a VA mental status evaluation. The veteran completed a post- traumatic stress disorder checklist. The veteran endorsed avoidance and feelings of rage and anger. The clinician determined that the veteran's responses reflected symptoms of post-traumatic stress disorder. In statements and testimony, the veteran described in-service exposure to mortar attacks. In August 2006, the RO obtained verification that during the veteran's dates of service in Vietnam his company came under mortar attack. On VA examination in March 2007, the veteran described exposure to light combat in service to include mortar attacks. He stated that he lost some friends in Vietnam and witnessed the death of a fellow soldier under enemy fire. He denied any history of psychiatric treatment. The veteran endorsed increased irritability affecting his employment and family life. The veteran described feelings of guilt related to family problems and problems sleeping. He stated that he was always worried about his job and his family. The diagnosis was anxiety disorder due to separation from his wife and high job stress. Principles of Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection for post-traumatic stress disorder 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. 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). The provisions of 38 C.F.R. § 4.125(a) require that a diagnosis of a mental disorder conform to the Diagnostic and Statistical Manual, Fourth Edition (DSM-IV). Analysis The service medical records do not show any complaint, clinical finding, or diagnosis of post-traumatic stress disorder. The central question in this case is whether the veteran has a current diagnosis of post-traumatic stress disorder. While in July 2003, a VA clinician determined that the veteran showed symptoms of post-traumatic stress disorder, a diagnosis of post-traumatic stress disorder was not made. On VA examination in March 2007, the examiner did not diagnose post-traumatic stress disorder, instead the veteran was diagnosed with anxiety disorder due to separation from his wife and high job stress. There is no competent evidence in favor of the claim. In the absence of competent medical evidence of a current diagnosis of post-traumatic stress disorder in accordance with 38 C.F.R. § 4.125(a), there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As for the veteran's statements and testimony that he has post-traumatic stress disorder related to service, where as here, the determinative issue involves a question of a medical diagnosis, competent medical evidence is required to substantiate the claim because a layperson is not competent to diagnose post-traumatic stress disorder, as by regulation the diagnosis of post-traumatic stress disorder requires medical evidence diagnosing the condition in accordance with Diagnostic and Statistical Manual of Mental Disorders (DSM- IV). 38 C.F.R. § 3.304(f). For this reason, the Board rejects the veteran's statements as competent evidence to substantiate the claim. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As the Board may consider only competent medical evidence to support its finding on a question of a medical diagnosis, not capable of lay observation, and as the competent medical evidence that the veteran does not meet the diagnosis of post-traumatic stress disorder is uncontroverted, the preponderance of the evidence is against the claim, and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). ORDER Service connection for post-traumatic stress disorder is denied. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs