Citation Nr: 0813703 Decision Date: 04/25/08 Archive Date: 05/01/08 DOCKET NO. 05-29 377 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Sylvia N. Albert, Associate Counsel INTRODUCTION The veteran had active service from June 1970 until February 1972. This matter comes before the Board of Veterans' Appeals (BVA or Board) from an October 2004 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in St. Louis, Missouri. The veteran elected in his September 2005 substantive appeal to have a Travel Board hearing and one was scheduled. However, in a November 2005 letter, the veteran's representative withdrew the request for a hearing and asked that the appeal be forwarded to the Board for immediate consideration. In August 2006, the veteran submitted evidence pertinent to his claim. This evidence was submitted more than 90 days after certification of the veteran's claim to the Board. See 38 C.F.R. § 20.1304 (2006). The veteran's representative submitted a letter waiving the right to have this additional evidence referred to the agency of original jurisdiction (AOJ) for initial review. The evidence has been made a part of the claims file, and, because AOJ review has been waived, the Board will consider this evidence in the first instance. Id. FINDING OF FACT The competent medical evidence of record does not demonstrate that the veteran has a current medical diagnosis of PTSD for VA purposes. CONCLUSION OF LAW 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 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). The VCAA applies in this case. Duty to Notify Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and 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). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Further regarding notice, on March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court in Dingess/Hartman holds that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, those five elements include: (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. Upon receipt of an application for "service connection," therefore, VA is required to review the information and evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, a June 2004 letter from the AOJ to the appellant satisfied VA's duty to notify. The letter informed him of what evidence was necessary to establish entitlement to the benefit he claimed and advised the veteran of his and VA's respective duties for obtaining evidence. He was told what VA had done to help his claim and also what he could do to assist. In addition, the veteran was informed of where to send any other information or evidence and what the evidence had to show to establish entitlement. Notably, neither this nor any other letter informed the veteran that a disability rating and effective date would be assigned in the event the veteran was awarded the benefit sought. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473. However, as service connection is denied in this case, VA's failure to provide this notice is not prejudicial to the veteran. Any questions as to the appropriate disability rating or effective date to be assigned have therefore been rendered moot, and the absence of notice on these two elements of a service connection claim does not prejudice the veteran. Duty to Assist VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim. 38 U.S.C.A. § 5103A(a)(1) (West 2002). In this case, the claims file contains the veteran's service medical records and reports of VA post-service examinations, as well as the veteran's statements in support of his appeal. The Board, after careful review of the veteran's statements, service records, and medical records, has found nothing to suggest that there is any outstanding evidence with respect to the veteran's claim. VA's duty to assist includes providing a VA medical examination when necessary to make a decision on the claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2007). A medical examination is "necessary" if the evidence of record (lay or medical) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; and indicates that the disability or symptoms may be associated with the claimant's active military, naval, or air service; but does not contain sufficient medical evidence for the Secretary to make a decision on the claim. 38 U.S.C.A. §5103A(d)(2). In this case, the veteran was afforded a VA examination, but contends that an additional examination is necessary to fulfill the VA's duty to assist. See Hyder v. Derwinski, 1 Vet. App. 221 (1991)(holding that the duty to assist may include additional VA examination by a specialist in cases which present a complicated disability picture). The veteran asserts that the examination must be conducted by a certified specialist who has experience with combat-related PTSD. In addition, the veteran maintains that this case presents a complicated disability picture because 'he was confused and in denial' during his examinations and 'did not talk to the doctor.' However, a review of this VA examination shows the examiner elicited substantial information regarding the veteran's medical history and current symptoms and completed an objective examination of him. The findings reported appear to be adequate, and there is nothing in the September 2004 VA examination report that leads the Board to believe the examination was less than adequate or that the veteran's disability picture is of such complexity as to require additional examination. The Board also notes that the VA examination was performed by a clinical psychologist, but nothing suggests that the examiner was not competent to perform the required examination and testing. Cox v. Nicholson, 20 Vet. App. 563, 569 (2007) (holding that VA may satisfy its duty to assist by providing a medical examination conducted by someone who is able to provide "competent medical evidence" under 38 C.F.R. § 3.159(a)(1)). The Board therefore finds that the examination is adequate and affords the results the appropriate probative weight. The Board is thus of the opinion that no reasonable possibility exists that an additional examination would aid the veteran in substantiating this claim. See 38 U.S.C.A. § 5103A. Legal Criteria and Analysis Service connection will be granted if the veteran shows he has a disability resulting from an injury incurred or a disease contracted in service, or for aggravation of a pre- existing injury or disease in active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2007). Service connection will also be approved for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). "Generally, to prove service connection, a claimant must submit (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury." Pond v. West, 12 Vet. App. 341, 346 (1999). 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). Service connection for PTSD requires medical evidence establishing a clear diagnosis of the condition, credible supporting evidence that the claimed in-service stressor actually occurred, and a link established by medical evidence between current symptomatology and the claimed in-service stressor. See 38 C.F.R. § 3.304(f) (2007). If the claimed stressor is related to combat, service department evidence that the veteran engaged in combat or that the veteran was awarded the Purple Heart, Combat Infantryman Badge, or similar combat citation will be accepted, in the absence of evidence to the contrary, as conclusive evidence of the claimed in-service stressor. Id.; see also 38 U.S.C. § 1154(b) (West 2002). More specifically, the Court of Veterans Appeals (the Court) has articulated a number of considerations that must be addressed in claims of service connection for post-traumatic stress disorder. In the case of Zarycki v. Brown, 6 Vet.App. 91 (1993), the Court set forth the framework for establishing the presence of a recognizable stressor, which is the essential prerequisite to support the diagnosis of post- traumatic stress disorder. Regarding combat related service, the Court articulated a two-step process of determining whether a veteran "engaged in combat with the enemy." First, it must be determined through recognized military citations or other supportive evidence, that the veteran was engaged in combat with the enemy and the claimed stressors are related to such combat. If the determination with respect to this step is affirmative, then a second step requires that the veteran's lay testimony regarding claimed stressors must be accepted as conclusive after the actual occurrence and no further development or corroborative evidence will be required. Regarding noncombat stressors, the Court has most recently held that "credible supporting evidence" means that the veteran's testimony, by itself, cannot, as a matter of law, establish the occurrence of a noncombat stressor; nor can credible supporting evidence of the actual occurrence of an inservice stressor consist solely of after-the-fact medical nexus evidence. See Moreau v. Brown, No. 94-883 (U.S. Vet.App. Sept. 12, 1996); Dizoglio v. Brown, 9 Vet.App. 163, 166 (1996). Additionally, the Court held that 38 C.F.R. § 3.304(f), and M21-1, Part VI, paragraph 7.46(c)(1), allow for a more favorable method of demonstrating the existence of inservice stressors. Marcoux v. Brown, No. 95-52 (U.S. Vet.App. Aug. 5, 1996). The veteran argues that he is entitled to service connection for post-traumatic stress disorder (PTSD). Documents of record establish that his military awards and decorations include the Combat Infantryman Badge. As such, the veteran's reported combat-related stressors are accepted as established. 38 C.F.R. § 3.304(f)(1). However, in this case, the record does not reflect that the veteran has a current PTSD diagnosis consistent with the American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (1994). In September 2001, the veteran was treated at a VA Medical Center in St. Louis, Missouri. Those records show that the veteran was evaluated by a physician, T.F., who diagnosed the veteran with alcohol abuse, rule out PTSD. See September 2001 Treatment Records. In addition, the veteran was afforded a VA examination in September 2004. The examiner found that a diagnosis of PTSD was 'not defensible' in this case given the patient's report, the spectrum of symptoms that he acknowledges (when DSM IV rules are applied), and his score of subclinical significance on the Mississippi Scale. Alternatively, the veteran was diagnosed with personality disorder, not otherwise specified, with avoidant, schizoid, and paranoid features. The record is absent of any other medical records which diagnose the veteran with PTSD. Therefore, in the absence of any evidence to the contrary, the Board must conclude that there has been no demonstration by competent clinical evidence of record that the veteran has a current PTSD diagnosis. There cannot be a valid claim for service connection unless there is proof of a present disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The veteran maintains that he suffers from PTSD. However, as a lay person with no demonstrated medical expertise, his opinion does not constitute competent medical evidence and lacks probative value. Espiritu, 2 Vet. App. at 494-95. The medical evidence of record does not establish a current diagnosis of PTSD. Therefore, as the evidence of record fails to establish that the veteran has PTSD, the Board finds that the preponderance of the evidence in this case falls against the claimant, making the benefit of the doubt rule inapplicable. See 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for PTSD is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs