Citation Nr: 0814362	
Decision Date: 05/01/08    Archive Date: 05/12/08

DOCKET NO.  05-31 227	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, 
Ohio


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

B. Berry, Associate Counsel


INTRODUCTION

The veteran served on active duty from February 1968 to 
February 1970.

This matter comes to the Board of Veterans' Appeals (Board) 
on appeal from a rating decision dated in April 2004 by the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Cleveland, Ohio.  This decision addresses only the issue of 
PTSD and not any claim or potential claim for a psychiatric 
disorder other than PTSD.


FINDING OF FACT

The competent medical evidence of record does not show that 
the veteran is currently diagnosed with PTSD.


CONCLUSION OF LAW

PTSD was not incurred in or aggravated by active service.  38 
U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 
3.159, 3.303, 3.304(f) (2007).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Veteran's Claims Assistance Act of 2000

The Veterans Claims Assistance Act of 2000 (VCAA) imposes a 
duty on the United States Department of Veterans Affairs (VA) 
to notify and assist a claimant in developing a claim.  
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. 
§§ 3.102, 3.156(a), 3.159 and 3.326(a).  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); 38 C.F.R. § 3.159(b); Quartuccio v. 
Principi, 16 Vet. App. 183 (2002).  Proper notice from VA 
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).  This 
notice must be provided prior to an initial unfavorable 
decision on a claim by the agency of original jurisdiction 
(AOJ).  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 
2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

An October 2003 VCAA letter informed the veteran of what 
evidence was required to substantiate his claim of service 
connection for PTSD.  This letter also informed him of his 
and VA's respective duties for obtaining evidence.  The VCAA 
letter requested the veteran to provide any evidence in his 
possession and he was informed that it was ultimately his 
responsibility to ensure that VA received any evidence not in 
the possession of the Federal government.  Therefore, the 
Board finds that the requirements of VCAA regarding the duty 
to notify have been met and that VA has no further duty prior 
to Board adjudication.

In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. 
Court of Appeals for Veterans Claims held that, upon receipt 
of an application for a service-connection claim, 38 U.S.C. 
§ 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the 
information and the 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, each of the 
five elements of the claim, including notice of what is 
required to establish service connection and that a 
disability rating and an effective date for the award of 
benefits will be assigned if service connection is awarded.  
In this case, the disability rating and the effective date 
portion of the duty to notify was satisfied subsequent to the 
initial AOJ decision by way of a letter sent to the veteran 
in March 2006.  The Board finds that this error was not 
prejudicial to the veteran because the actions taken by VA 
after providing the notice have essentially cured the error 
in the timing of the notice.  Not only has the veteran been 
afforded a meaningful opportunity to participate effectively 
in the processing of his claim and given ample time to 
respond, but the AOJ also readjudicated the case by way of 
the supplemental statement of the case issued in October 2007 
after the notice was provided.  See Prickett v. Nicholson, 20 
Vet. App. 370, 376 (2006) (the issuance of a fully compliant 
VCAA notification followed by readjudication of the claim, 
such as a statement of the case or supplemental statement of 
the case, is sufficient to cure a timing defect).  
Furthermore, this error was harmless given that service 
connection is being denied, and hence no rating or effective 
date will be assigned with respect to this claimed condition.  
For these reasons, it is not prejudicial to the veteran for 
the Board to proceed to decide this appeal as the timing 
error did not affect the essential fairness of the 
adjudication.  

With regard to the duty to assist, the claims file contains 
service medical records, private treatment records, VA 
medical treatment records, and a December 2003 VA 
psychological examination report.  Additionally, the claims 
file contains the veteran's statements in support of his 
claim.  The Board has carefully reviewed such statements and 
concludes that the veteran has not identified further 
available evidence not already of record.  The veteran 
submitted the VCAA notice response letter in April 2006 
stating that he had no other information or evidence to give 
the VA to substantiate his claim and to decide his case as 
soon as possible.  There is no other indication in the file 
that there are additional relevant records that have not yet 
been obtained.  Based on the foregoing, the Board finds that 
all relevant facts have been developed properly and 
sufficiently in this appeal and no further development is 
required to comply with the duty to assist the veteran in 
developing the facts pertinent to his claim. 

II.  Merits of the Claim for Service Connection

The veteran filed a claim for entitlement to service 
connection disability for PTSD in August 2003.  The veteran 
contends that he currently suffers from PTSD as a result of 
incidents that occurred during his Vietnam military service 
from February 1968 to February 1971.  The RO denied service 
connection for PTSD.  The veteran appeals this decision.  

Service connection may be granted for a disability resulting 
from disease or injury incurred in or aggravated by active 
military duty.  38 U.S.C.A. §§ 1110, 1131.  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 C.F.R. § 3.303(d).  Establishment of 
service connection for PTSD requires:  (1) medical evidence 
diagnosing PTSD; (2) credible supporting evidence that the 
claimed in-service stressor actually occurred; and 
(3) medical evidence of a link between current symptomatology 
and the claimed in-service stressor.  38 C.F.R. § 3.304(f).  
See also Cohen v. Brown, 10 Vet. App. 128 (1997).  

In order for the veteran to be entitled to service connection 
for PTSD, the medical evidence must show a diagnosis of PTSD.  
In this case, the service medical records do not reveal a 
medical diagnosis of any psychiatric disorder.  The first 
evidence of treatment for a psychological problem was in 
March 2003 when the veteran sought an evaluation by the VA 
for depression and sleep problems.  He was evaluated by a 
social worker who indicated that the veteran screened 
positive for PTSD, however the veteran should be assessed 
further after he achieved sixty days of abstinence from 
alcohol.  The social worker diagnosed the veteran under Axis 
I with recurrent major depressive disorder, alcohol abuse and 
that the veteran needed further assessment to rule out PTSD.  
This is not considered a diagnosis of PTSD as the social 
worker indicated that further examination of the veteran 
needed to be conducted before the veteran could be diagnosed 
with PTSD.  Furthermore, this opinion was provided by a 
social worker and not a medical professional generally 
considered to have the expertise to diagnose PTSD.  The Court 
has recognized that evidence such as a medical opinion that 
requires "scientific, technical, or other specialized 
knowledge" must be provided by "a witness qualified as an 
expert by knowledge, skill, experience, training, or 
education."  Espiritu v. Derwinski, 2 Vet.App. 492, 495 
(1992); see also 38 C.F.R. § 3.159(a)(1) (2006) (defining 
"competent medical evidence" as "evidence provided by a 
person who is qualified through education, training or 
experience to offer medical diagnoses, statements or 
opinions." ).  As such, a social worker is not competent to 
provide probative medical evidence on a matter such as the 
diagnosis or etiology of a claimed medical condition. Cf. Cox 
v. Nicholson, 20 Vet.App. 563 (2007) (recognizing that a 
nurse practitioner's advanced education and clinical training 
in a specialized area of healthcare qualified her to provide 
diagnoses, statements or opinions).  The VA medical records 
note in May 2003 that the veteran has PTSD by history, 
however, this is not evidence of a medical diagnosis of PTSD, 
because "by history" means that the clinician did not 
provide the diagnosis.  

The veteran underwent a VA examination conducted by a 
psychologist in December 2003.  The VA examiner determined 
that the veteran's history, presentation on interview and 
testing did not meet the DSM-IV criteria for PTSD.  The 
veteran did not report any traumatic events in service.  The 
examiner stated that the veteran's Vietnam War related 
feelings of guilt and occasional dreams about running out of 
bullets, being in high places, and being stuck somewhere 
appear to be triggered by his current stressful work 
situation.  The VA examiner also noted that the dreams 
involved different environments and that the majority of the 
dreams did not contain Vietnam combat oriented themes, but 
other weird situations.  The VA examiner determined that the 
veteran did not suffer from a mental illness incurred during 
his military service.  The veteran was diagnosed under Axis I 
with major depressive disorder and alcohol dependence using 
the Diagnostic Criteria from DSM-IV.  In addition, later PTSD 
screens of the veteran were negative.  See VA progress notes 
dated November 2004 and November 2005.  Therefore, the 
competent evidence of record shows that the veteran does not 
have a current diagnosis of PTSD.   

The only evidence supporting a finding of a current diagnosis 
of PTSD is the lay statements from the veteran.  Lay persons 
can provide an eyewitness account of a veteran's visible 
symptoms or the facts of observed situations or 
circumstances.  See Caldwell v. Derwinski, 1 Vet. App. 466, 
469 (1991).  However, lay assertions regarding medical 
matters such as the specific diagnosis of PTSD have no 
probative value because lay persons are not competent to 
offer medical opinions as to specific diagnoses that require 
special knowledge.  Espiritu v. Derwinski, 2 Vet. App. 492, 
494-95 (1992).  The lay evidence offered by the veteran is 
not competent medical evidence.  Therefore, in the absence of 
competent medical evidence of the claimed disability there 
can be no valid claim.  Brammer v. Derwinski, 3 Vet. App. 
223, 225 (1992).

As the evidence of record does not show a diagnosis of PTSD 
by a competent mental health professional, the Board finds 
that the preponderance of the evidence weighs against the 
veteran's claim.  Thus, service connection for PTSD is not 
warranted.
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ORDER

Entitlement to service connection for PTSD is denied.



____________________________________________
John E. Ormond, Jr. 
Veterans Law Judge, Board of Veterans' Appeals
























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