Citation Nr: 0812834 Decision Date: 04/17/08 Archive Date: 05/01/08 DOCKET NO. 02-08 609A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs ATTORNEY FOR THE BOARD Jennifer Hwa, Associate Counsel INTRODUCTION The veteran served on active duty from September 1979 to October 1988. This matter comes before the Board of Veterans' Appeals (Board) from an August 2001 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for an acquired psychiatric disorder, to include PTSD. The Board remanded the claim for additional development in October 2003 and July 2005. The Board notes that the veteran filed a notice of disagreement for a compensable initial rating for a chronic right eye disability in April 2005, for which the RO issued a November 2007 statement of the case. However, the record does not show that the veteran filed a timely appeal on that issue. Therefore, service connection for an acquired psychiatric disorder, to include PTSD, is the only issue before the Board at this time. FINDING OF FACT The veteran's diagnosed psychiatric disorders (PTSD, depression, anxiety) first manifested many years after his separation from service and are unrelated to his period of service or to any incident therein. CONCLUSION OF LAW A psychiatric disorder, to include PTSD, was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service Connection Service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2007). For the showing of chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, evidence of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2007). Service connection may also be granted for a disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2007). Service connection may also be established for certain chronic diseases, including psychoses, manifested to a compensable degree within a presumptive period following separation from service. 38 C.F.R. §§ 3.307, 3.309. In order to establish service connection for a claimed disorder, there must be (1) medical evidence of current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247 (1999); Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (i.e., under the criteria of DSM-IV), 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. 38 C.F.R. § 4.125 (2007). 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 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) (2007); 38 U.S.C.A. § 1154(b) (West 2002). When the evidence does not establish that a veteran is a combat veteran, his assertions of service stressors are not sufficient to establish the occurrence of such events. Rather, his alleged service stressors must be established by official service record or other credible supporting evidence. 38 C.F.R. § 3.304(f); Pentecost v. Principi, 16 Vet. App. 124 (2002); Fossie v. West, 12 Vet. App. 1 (1998); Cohen v. Brown, 10 Vet. App. 128 (1997); Doran v. Brown, 6 Vet. App. 283 (1994). It is the Board's principal responsibility to assess the credibility, and therefore the probative value of proffered evidence of record in its whole. Owens v. Brown, 7 Vet. App. 429 (1995); Elkins v. Gober, 229 F.3d 1369 (Fed. Cir. 2000); Madden v. Gober, 125 F. 3d 1477, 1481 (Fed. Cir. 1997); Guimond v. Brown, 6 Vet. App. 69 (1993); Hensley v. Brown, 5 Vet. App. 155 (1993). In determining whether documents submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board is not required to accept an appellant's uncorroborated account of his active service experiences. Wood v. Derwinski, 1 Vet. App. 190 (1991). The veteran contends that he suffers from an acquired psychiatric disorder, to include PTSD, as a result of an incident during service where a friend and fellow serviceman died in a car accident while driving to see his in-laws. He reports that his friend Sergeant James E. Taylor asked him to take a trip with him to visit his in-laws for Father's Day on June 9, 1985 when they were stationed in Germany. He states that he declined because he needed to stay with his family that weekend. He reports that Sergeant Taylor drove off with four of their other friends, and when returning house, crashed the car into some concrete barricades and died in the accident. The veteran's four other friends were severely injured. The veteran's service personnel records list his military occupational specialty as light wheel vehicle mechanic, and show that he received the Overseas Service Ribbon, Army Service Ribbon, Good Conduct Medal, and Army Achievement Medal. Those awards indicate service but do not denote combat. The veteran's records show that he served in Germany, but the veteran does not allege combat exposure. As the veteran does not have a confirmed history of engaging in combat with the enemy during service, his alleged stressors must be verified. The veteran's service medical records are negative for any complaints of or treatment for psychiatric disorders. The available evidence of record shows an October 1986 examination where the veteran made no psychiatric complaints, and his psychiatric system was found to be within normal limits. Since the veteran had no psychiatric abnormalities at his last available examination prior to separation, and there were no recorded complaints during approximately nine years of service, the Board finds that the weight of the evidence demonstrates that chronicity in service is not established. 38 C.F.R. § 3.303(b). As chronicity in service has not been established, a showing of continuity of symptoms after discharge is required to support the veteran's claim for service connection for an acquired psychiatric disorder, to include PTSD. 38 C.F.R. § 3.303(b). The first post-service clinical evidence of record of symptoms of a psychiatric disorder is an August 2000 VA medical report where the veteran complained of fatigue, loss of energy, irritability, anxiety, sadness, and difficulty sleeping. He was diagnosed with depression. In a December 2000 VA medical report, the veteran complained of increased anxiety and decreased sleep. He admitted to sad spells but denied suicidal thoughts. He reported thinking some homicidal thoughts but denied any intention of acting on them. The diagnoses were depression, anxiety, and decreased sleep. A June 2001 VA medical report shows the veteran complained of increased irritability, anxiety, and depression. He also reported being easily startled. In a September 2001 VA medical report, the veteran denied hallucinations and suicidal and homicidal thoughts. He had relevant and coherent speech, was properly oriented, and had intact memory. His affect was in keeping with his mood, and his cognitive function was satisfactory. The diagnosis was PTSD. VA medical records dated from September 2001 to December 2002 show that the veteran received intermittent treatment for PTSD. In July 2005, the National Personnel Records Center (NPRC) coordinated its research with the United States Army Combat Readiness Center in an attempt to verify the veteran's alleged stressor. The Army Safety data records did not show the incident that the veteran described nor did they list James E. Taylor as a casualty or death. Upon reviewing the Department of Defense Casualty Files, the NPRC found that there was no James E. Taylor listed as being killed in Germany in 1985. A review of casualties by date did not reveal any names similar to Taylor recorded for June 9, 1985. With regard to whether the veteran is entitled to service connection for the PTSD with which he has been diagnosed, the Board finds that he is not. The Board concedes that the veteran carries a diagnosis of PTSD. As such, the focus turns on whether the veteran's alleged stressor has been adequately confirmed. The NPRC found in July 2005 that the stressor in connection with the veteran's PTSD claim was unverified. There was no record showing the incident that the veteran had described, and there was no evidence that a James E. Taylor had been killed in Germany on the specified date and year. The Board finds that there is no evidence to support establishing a stressor for PTSD. The credible and probative evidence is against the veteran's contention that he experienced a non-combat stressor in service which has led to a diagnosis of PTSD. Therefore, service connection for PTSD must be denied. With regard to whether the veteran is entitled to service connection for the depression and anxiety with which he has been diagnosed, the Board finds that he is not. Service connection may be granted when all the evidence establishes a medical nexus between military service and current complaints. Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). In this case, the Board finds that the evidence is against a finding of a nexus between military service and the veteran's current psychiatric disorders because the evidence does not show that those disorders were present in service or are due to the veteran's service in any way. In addition, a psychosis was not diagnosed within one year of separation, so presumptive service connection for an acquired psychiatric disorder is not warranted. The veteran contends that his current psychiatric disorders are related to his active service. However, as a layperson, he is not competent to give a medical opinion on diagnosis, causation, or aggravation of a medical condition. Bostain v. West, 11 Vet. App. 124 (1998); Routen v. West, 142 F.3d. 1434 (Fed. Cir. 1998); Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Board acknowledges that the veteran is competent to give evidence about what he experienced. Layno v. Brown, 6 Vet. App. 465 (1994). Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67 (1997). The veteran contends that the evidence shows continuity of symptoms after discharge and supports his claim for service connection. However, the first post-service evidence of an acquired psychiatric disorder is in August 2000, approximately 12 years after his separation from service. In view of the lengthy period without treatment, there is no evidence of a continuity of symptomatology, and this weighs heavily against the claim. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Furthermore, the competent evidence of record does not show that any current psychiatric disorder was incurred in or aggravated by service. The Board finds that the preponderance of the medical evidence weighs against a finding that the veteran's acquired psychiatric disorders, to include PTSD, developed in service. Therefore, the Board concludes that the psychiatric disorders were not incurred in or aggravated by service. As the preponderance of the evidence is against the claim for service connection, the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duties to Notify and Assist the Appellant Upon receipt of a complete or substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. This notice requires VA to indicate which portion of that information and evidence is to be provided by the claimant and which portion VA will attempt to obtain on the claimant's behalf. See 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. § 3.159 (2007). The notice 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 in the claimant's possession that pertains to the claim, or something to the effect that the claimant should "give us everything you've got pertaining to your claim(s)." Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the RO sent correspondence in April 2003; a rating decision in August 2001; a statement of the case in November 2001; and supplemental statements of the case in April 2003 and March 2005. These documents discussed specific evidence, the particular legal requirements applicable to the claim, the evidence considered, the pertinent laws and regulations, and the reasons for the decisions. VA made all efforts to notify and to assist the appellant with regard to the evidence obtained, the evidence needed, the responsibilities of the parties in obtaining the evidence, and the general notice of the need for any evidence in the appellant's possession. The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. There has been no prejudice to the appellant, and any defect in the timing or content of the notices has not affected the fairness of the adjudication. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (specifically declining to address harmless error doctrine); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the final adjudication in the December 2007 supplemental statement of the case. In addition, all relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has not obtained a medical examination in relation to this claim because there is no competent evidence that the appellant's diagnosed psychiatric disorders are the result of any event, injury, or disease in service. See 38 C.F.R. § 3.159(c)(4) (2007). Thus, the Board finds that VA has satisfied both the notice and duty to assist provisions of the law. ORDER Service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder, is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs