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