Citation Nr: 0811398	
Decision Date: 04/07/08    Archive Date: 04/23/08

DOCKET NO.  05-14 062A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, 
California


THE ISSUE

Entitlement to service connection for post-traumatic stress 
disorder (PTSD).


REPRESENTATION

Appellant represented by:	California Department of 
Veterans Affairs


ATTORNEY FOR THE BOARD

Ann-Monique Clark, Associate Counsel


INTRODUCTION

The veteran had active service from September 1969 to April 
1971.

This matter comes before the Board of Veterans' Appeals (BVA 
or Board) from a rating decision of the Department of 
Veterans Affairs (VA) Regional Office (RO) in Oakland, 
California. 


FINDINGS OF FACT

1.  Competent medical evidence of record does not establish 
that the veteran has a current diagnosis of PTSD in 
accordance with the Diagnostic and Statistical Manual, Fourth 
Edition (DSM-IV).  

2.  The evidence of record is sufficient to verify a rocket 
attack on the veteran's base; no competent evidence causally 
relates the current diagnosis to that verified stressor..


CONCLUSION OF LAW

PTSD was not incurred in or aggravated by active service.  
38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. §§ 
3.102, 3.159, 3.303, 4.125 (2007).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Under the relevant laws and regulations, service connection 
may be granted for a disability resulting from disease or 
injury incurred in or aggravated by active service.  38 
U.S.C.A. §§ 1110, 1131 (West 2002).  If a chronic disease is 
shown in service, subsequent manifestations of the same 
chronic disease at any later date, however remote, may be 
service connected, unless clearly attributable to 
intercurrent causes.  38 C.F.R. § 3.303(b) (2007).  However, 
continuity of symptoms is required where a condition in 
service is noted but is not, in fact, chronic or where a 
diagnosis of chronicity may be legitimately questioned.  38 
C.F.R. § 3.303(b) (2006).

Further, service connection may also be granted for any 
disease diagnosed after discharge, when all the evidence, 
including that pertinent to service, establishes that the 
disease was incurred in service.  38 U.S.C.A. § 1113(b) (West 
2002); 38 C.F.R. § 3.303(d) (2007).  The Board must determine 
whether the evidence supports the claim or is in relative 
equipoise, with the appellant prevailing in either case, or 
whether the preponderance of the evidence is against the 
claim, in which case, service connection must be denied.  
Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Where the determinative issue involves a medical diagnosis, 
competent medical evidence is required.  This burden 
typically cannot be met by lay testimony because lay persons 
are not competent to offer medical opinions.  Espiritu v. 
Derwinski, 2 Vet. App. 492, 494-95 (1992).

The Board has reviewed all of the evidence in the veteran's 
claims folder.  Although the Board has an obligation to 
provide reasons and bases supporting this decision, there is 
no need to discuss, in detail, extensive evidence of record.  
Indeed, the Federal Circuit has held that the Board must 
review the entire record, but does not have to discuss each 
piece of evidence.  Gonzales v. West, 218 F.3d 1378, 1380-81 
(Fed. Cir. 2000).  Therefore, the Board will summarize the 
relevant evidence where appropriate, and the Board's analysis 
below will focus specifically on what the evidence shows, or 
fails to show, as to each claim.  

The veteran is seeking service connection for PTSD.  In order 
to prevail on such a claim, the evidence must contain a 
competent diagnosis of that condition in accordance with 38 
C.F.R. § 4.125(a).  Put another way, the evidence must 
establish an impression of PTSD that conforms to the clinical 
criteria set forth in DSM-IV.  

Here, a VA examiner found in October 2006 that the veteran 
did not meet the DSM-IV diagnostic requirements for PTSD.  
The examiner further concluded that  
the veteran "suffers from chronic mild anxiety and 
despondency, but there is no evidence of impairment in social 
or vocational functioning."  Additionally, a VA outpatient 
report from May 2007 indicates that the veteran is negative 
for PTSD.  

The Board acknowledges a private treatment record of March 
2004, where a therapist stated that the veteran met the 
criteria for a diagnosis of PTSD.  However, the Board deems 
the October 2006 VA examiner's findings to be more probative, 
since his report specifically outlined each criterion under 
DSM-IV and explained why a formal diagnosis was not 
justified.  Therefore, the greater weight of the competent 
evidence indicates that the veteran's psychiatric symptoms 
are not consistent with a formal diagnosis of PTSD.

In summation, the evidence of record fails to establish a 
current formal diagnosis of PTSD.  Lacking such diagnosis, 
the claim must fail.  The Board finds support for this 
conclusion in a decision of the United States Court of 
Appeals for Veterans Claims, which interpreted the 
requirement of current disability thus:

Congress specifically limits entitlement 
for service-connected disease or injury 
to cases where such incidents have 
resulted in a disability.  See 38 U.S.C. 
§ 1110.  In the absence of proof of a 
present disability there can be no valid 
claim.  
Brammer v. Derwinski, 3 Vet. App. 223, 
225 (1992).

Even if the evidence of record could be construed so as to 
enable a finding that the veteran does have a formal 
diagnosis of PTSD consistent with DSM-IV, a grant of service 
connection would still not be appropriate.  Indeed, to 
establish a formal diagnosis of PTSD, a person must have been 
exposed to a traumatic event in which both of the following 
were present: (1) the person experienced, witnessed or was 
confronted with an event or events that involved actual or 
threatened death or serious injury, or a threat to the 
physical integrity of self or others; (2) the person's 
response involved intense fear, helplessness, or horror.  See 
DSM-IV, Diagnostic Code 309.81(a).  

A veteran classified as a "non-combat veteran," requires 
independent evidence to corroborate his statements as to the 
occurrence of the claimed stressors.  See Doran, 6 Vet. App. 
at 288-89 (1994).  In this vein, the evidence does not reveal 
that the veteran engaged in combat with the enemy.  His 
personnel records do not show any combat-related awards, such 
as a Silver Star Medal or a Purple Heart.  Moreover, the 
veteran's principal duty assignments are not suggestive of 
combat.  Therefore, with the absence of such corroboration, 
the claim must be denied.

The Board notes that the veteran described various in-service 
stressors during his VA examination in October 2006.  
Specifically, the veteran spoke of rocket attacks, witnessing 
killings and sniper fire.  He also mentioned an incident in 
which a round of artillery hit the shower and mess hall.  
Unit records indicate attacks on the veteran's unit resulting 
in casualties as indicated by documents from the Department 
of the Army. 

Under Pentacost v. Principi, 16 Vet. App. 124, 128 (Vet. App. 
May 24, 2002), (which held that, in order to show presence 
during a stressful event, evidence need not demonstrate that 
a veteran actually was present during the event if the 
evidence shows that his unit was present during the event), 
the Department of the Army documents appear sufficient to 
verify the stressor involving the rocket attacks described 
above.  However, no competent evidence of record causally 
relates the current diagnosis to such event.  In fact, the 
rocket attacks were not noted in the March 2004 private 
psychiatric evaluation.  Therefore, even though that report 
diagnosed PTSD, such diagnosis cannot be found to relate to 
the verified stressor.  Moreover, the VA examiner in October 
2006 did not causally relate the veteran's psychiatric 
symptoms to active service.  In fact, the VA examiner 
specifically stated that the veteran's emotional problems 
were not clearly due to or caused by his experiences in 
Vietnam, and "...may have been caused by his employment in the 
prison system for 16 years." 

In conclusion, even if the evidence can be construed as 
demonstrating a current diagnosis of PTSD, the competent 
evidence does not causally relate the current diagnosis to 
active service.  See 38 U.S.C.A. § 5107(b); Gilbert v. 
Derwinski, 1 Vet. App. 49, 54-56 (1990).
 
Finally, as provided for by the Veterans Claims Assistance 
Act of 2000 (VCAA), VA has a duty to notify and assist 
claimants in substantiating a claim for VA benefits.  
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 
& Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 
3.326(a) (2007).  

Proper notice from VA must inform the claimant of any 
information and medical or lay 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 her or his possession that pertains to the claim 
in accordance with 38 C.F.R. § 3.159(b)(1).  Quartuccio v. 
Principi, 16 Vet. App. 183 (2002).  This notice must be 
provided prior to an initial unfavorable decision on a claim 
by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 
2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

In addition, the notice requirements of the VCAA apply to all 
five elements of a service-connection claim, including: (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.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 
473 (2006).  Further, this notice must include information 
that a disability rating and an effective date for the award 
of benefits will be assigned if service connection is 
awarded.  Id. at 486.  

VCAA notice errors are presumed prejudicial unless VA shows 
that the error did not affect the essential fairness of the 
adjudication.  To overcome the burden of prejudicial error, 
VA must show (1) that any defect was cured by actual 
knowledge on the part of the claimant; (2) that a reasonable 
person could be expected to understand from the notice what 
was needed; or, (3) that a benefit could not have been 
awarded as a matter of law.  See Sanders v. Nicholson, 487 
F.3d 881 (Fed. Cir. 2007).  

Here, the VCAA duty to notify was satisfied by way of a 
letter sent to the veteran in August 2004 that fully 
addressed all four notice elements and was sent prior to the 
initial RO decision in this matter.  The letter informed him 
of what evidence was required to substantiate the claim and 
of his and VA's respective duties for obtaining evidence.  He 
was also asked to submit evidence and/or information in his 
possession to the RO.  

There is no allegation from the veteran that he has any 
evidence in his possession that is needed for full and fair 
adjudication of this claim.  Under these circumstances, the 
Board finds that the notification requirements of the VCAA 
have been satisfied as to both timing and content.

With respect to the Dingess requirements, in March 2008, the 
RO provided the veteran with notice of what type of 
information and evidence was needed to establish a disability 
rating, as well as notice of the type of evidence necessary 
to establish an effective date.  With that letter, the RO 
effectively satisfied the remaining notice requirements with 
respect to the issue on appeal.  

Therefore, adequate notice was provided to the veteran prior 
to the transfer and certification of his case to the Board 
and complied with the requirements of 38 U.S.C. § 5103(a) and 
38 C.F.R. § 3.159(b).  

Next, VA has a duty to assist the veteran in the development 
of the claim.  This duty includes assisting him in the 
procurement of service medical records and pertinent 
treatment records and providing an examination when 
necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  

In determining whether the duty to assist requires that a VA 
medical examination be provided or medical opinion obtained 
with respect to a veteran's claim for benefits, there are 
four factors for consideration.  

These four factors are:  (1) whether there is competent 
evidence of a current disability or persistent or recurrent 
symptoms of a disability; (2) whether there is evidence 
establishing that an event, injury, or disease occurred in 
service, or evidence establishing certain diseases 
manifesting during an applicable presumption period; (3) 
whether there is an indication that the disability or 
symptoms may be associated with the veteran's service or with 
another service-connected disability; and (4) whether there 
otherwise is sufficient competent medical evidence of record 
to make a decision on the claim.  38 U.S.C. § 5103A(d); 
38 C.F.R. § 3.159(c)(4).  

With respect to the third factor above, the Court of Appeals 
for Veterans Claims has stated that this element establishes 
a low threshold and requires only that the evidence 
"indicates" that there "may" be a nexus between the 
current disability or symptoms and the veteran's service.  

The types of evidence that "indicate" that a current 
disability "may be associated" with military service 
include, but are not limited to, medical evidence that 
suggests a nexus but is too equivocal or lacking in 
specificity to support a decision on the merits, or credible 
evidence of continuity of symptomatology such as pain or 
other symptoms capable of lay observation.  McLendon v. 
Nicholson, 20 Vet. App. 79 (2006).  

In this case, the Board finds that all necessary development 
has been accomplished, and therefore appellate review may 
proceed without prejudice to the veteran.  See Bernard v. 
Brown, 4 Vet. App. 384 (1993).  The RO has obtained VA 
outpatient records. The veteran additionally submitted 
private treatment records.  In addition, he was afforded a VA 
medical examination in October 2006.   

Significantly, neither the veteran nor his representative has 
identified, and the record does not otherwise indicate, any 
additional existing evidence that is necessary for a fair 
adjudication of the claim that has not been obtained.  

Hence, no further notice or assistance to the veteran is 
required to fulfill VA's duty to assist in the development of 
the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 
281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 
Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 
Vet. App. 183 (2002).




ORDER

Service connection for PTSD is denied.




____________________________________________
ERIC S. LEBOFF
Acting Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs