Citation Nr: 1007183	
Decision Date: 02/26/10    Archive Date: 03/05/10

DOCKET NO.  07-34 862	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Reno, 
Nevada


THE ISSUE

Entitlement to service connection for posttraumatic stress 
disorder (PTSD).


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of 
the United States


ATTORNEY FOR THE BOARD

Hallie E. Brokowsky, Counsel




INTRODUCTION

The Veteran had service from January 1961 to October 1983.  

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a June 2006 rating decision of the 
Department of Veterans Affairs (VA) Regional Office (RO) 
in Reno, Nevada.


FINDING OF FACT

There is no diagnosis of PTSD, as defined by the American 
Psychiatric Association, Diagnostic and Statistical Manual of 
Mental Disorders, Fourth Edition (1994). 


CONCLUSION OF LAW

PTSD was not incurred in or aggravated by service.  
38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 1113, 1131, 1137, 
5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.1, 3.102, 
3.159, 3.301, 3.303, 3.304, 3.306, 3.307, 3.309 (2009).


REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000

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 & Supp. 2009); 38 C.F.R. 
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009).  



Notice

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 & Supp. 2007); 38 C.F.R. § 3.159(b) (2009); 
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; and (3) that the 
claimant is expected to provide 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, 19 Vet. App. 103 (2005); rev'd on other grounds, 
444 F.3d 1328 (Fed. Cir. 2006).

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, the Department of Veterans Affairs (VA) is 
required 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 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.

VA issued a VCAA notice letter, dated in October 2005, from 
the agency of original jurisdiction (AOJ) to the appellant.  
The letter explained the evidence necessary to substantiate 
the Veteran's claim of entitlement to service connection, as 
well as the legal criteria for entitlement to such benefits.  
The letter also informed him of his and VA's respective 
duties for obtaining evidence. 

In addition, a March 2006 letter from VA explained how a 
disability rating is determined for a service-connected 
disorder and the basis for determining an effective date upon 
the grant of any benefit sought, in compliance with 
Dingess/Hartman.  

In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United 
States Court of Appeals for Veterans Claims held, in part, 
that VCAA notice, as required by 38 U.S.C.A. § 5103(a), must 
be provided to a claimant before the initial unfavorable 
agency of original jurisdiction (AOJ) decision on a claim for 
VA benefits.  In the present case, the unfavorable AOJ 
decision that is the basis of this appeal was decided after 
the issuance of an initial, appropriate VCAA notice.  As 
such, there was no defect with respect to timing of the VCAA 
notice.

The appellant has been provided with every opportunity to 
submit evidence and argument in support of his claim and to 
respond to VA notice.  Further, the Board finds that the 
purpose behind the notice requirement has been satisfied 
because the appellant has been afforded a meaningful 
opportunity to participate effectively in the processing of 
his claim.  

Duty to Assist

With regard to the duty to assist, the claims file contains 
the Veteran's service treatment records and reports of VA 
post-service treatment and examination.  Additionally, the 
claims file contains the Veteran's own statements in support 
of his claim.  The Board has carefully reviewed such 
statements and concludes that he has not identified further 
evidence not already of record.  The Board has also reviewed 
the medical records for references to additional treatment 
reports not of record, but has found nothing to suggest that 
there is any outstanding evidence with respect to the 
Veteran's claim. 

The Board acknowledges that in McLendon v. Nicholson, 20 Vet. 
App. 79, 83-86 (2006), the Court found that a VA medical 
examination was required to adjudicate a claim for service 
connection where there was a current disability, credible 
evidence of an in-service injury, the medical opinions of 
record noted that the current disability could have been 
caused by the in-service injury, and the Board did not find 
that the Veteran's lay testimony regarding continuity of 
symptomatology was not credible.  However, the Board points 
out that this case is distinguishable from McLendon with 
regard to the Veteran's claim of entitlement to service 
connection, such that a VA medical opinion is not required.  
In this instance, there is no credible evidence of record 
that establishes that the Veteran's claimed disability is due 
to an injury or disease in service and the appellant has not 
identified or submitted any objective medical evidence in 
support of this claim.  As such, VA is not required to obtain 
a VA medical opinion in order to adjudicate the appellant's 
claim of entitlement to service connection.  See Tirpak v. 
Derwinski, 2 Vet. App. 609 (1992) (medical possibilities and 
unsupported medical opinions carry negligible probative 
weight).  See also 38 U.S.C.A. § 5103A(d)(1); 38 C.F.R. § 
3.159(c)(4) (VA only has an affirmative duty to obtain an 
examination of the claimant at VA health-care facilities if 
the evidence of record does not contain adequate evidence to 
decide a claim).  

Based on the foregoing, the Board finds that all relevant 
facts have been properly and sufficiently developed 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.  Essentially, all available evidence 
that could substantiate the claim has been obtained.  There 
is no indication in the file that there are additional 
relevant records that have not yet been obtained.

Legal Criteria

Service Connection - Generally

A veteran is entitled to service connection for a disability 
resulting from a disease or injury incurred or aggravated 
during active service.  See 38 U.S.C.A. § 1110; 38 C.F.R. 
§ 3.303(a).  Service connection also is permissible for any 
disease diagnosed after discharge, when all the evidence, 
including that pertinent to service, establishes the disease 
was incurred in service.  38 C.F.R. § 3.303(d).  Certain 
chronic diseases will be presumed to have been incurred or 
aggravated in service if manifested to a compensable degree 
within one year after service.  38 U.S.C.A. §§ 1101, 1112, 
1113; 38 C.F.R. §§ 3.307, 3.309.  This presumption is 
rebuttable by probative evidence to the contrary.

If there is no evidence of a chronic condition during 
service, or during an applicable presumptive period, then a 
showing of continuity of symptomatology after service is 
required to support the claim.  See 38 C.F.R. § 3.303(b).  
Evidence of a chronic condition must be medical, unless it 
relates to a condition to which lay observation is competent.  
See Savage v. Gober, 10 Vet. App. 488, 495-498 (1997).  

PTSD

To establish entitlement to service connection for PTSD, in 
particular, there must be medical evidence diagnosing the 
condition in accordance with 38 C.F.R. § 4.125(a) (conforming 
to the Diagnostic and Statistical Manual of Mental Disorders, 
Fourth Edition (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.  See 38 C.F.R. § 3.304(f).

The evidence necessary to establish the occurrence of a 
recognizable stressor during service, to support a diagnosis 
of PTSD, will vary depending upon whether the veteran engaged 
in combat with the enemy.  Where it is determined, through 
recognized military citations or other supportive evidence, 
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 his service, his lay testimony 
alone may establish the occurrence of the claimed in-service 
stressor.  See 38 C.F.R. § 3.304(f) (as amended by 
64 Fed. Reg. 32,807-32808 (1999)) (effective March 7, 1997) 
(implementing the decision in Cohen v. Brown, 10 Vet. App. 
128 (1997)).  See also 38 U.S.C.A. § 1154(b) and 38 C.F.R. 
§ 3.304(d) (pertaining to combat veterans).  However, where 
the veteran did not engage in combat or the claimed stressor 
is noncombat-related, the record must contain service records 
or other credible sources that corroborate his testimony as 
to the occurrence of the claimed stressor.  See Moreau v. 
Brown, 9 Vet. App. 389 (1996); aff'd, 124 F. 3d 228 (Fed. 
Cir. 1997).

VA's General Counsel has held that the ordinary meaning of 
the phrase "engaged in combat with the enemy," as used in 38 
U.S.C.A. § 1154(b), requires that a veteran "have 
participated in events constituting an actual fight or 
encounter with a military foe or hostile unit or 
instrumentality."  VAOPGCPREC 12-99 (Oct. 18, 1999); 65 Fed. 
Reg. 6256-6258 (2000).  The General Counsel also indicated 
that the determination of whether a veteran engaged in combat 
with the enemy necessarily must be made on a case-by-case 
basis, and that absence from a veteran's service records of 
any ordinary indicators of combat service may, in appropriate 
cases, support a reasonable inference that he did not engage 
in combat; such absence may properly be considered "negative 
evidence" even though it does not affirmatively show that he 
did not engage in combat.  Id.  

Where a determination is made that the veteran did not 
"engage in combat with the enemy," or that the claimed 
stressor is not related to combat, the veteran's lay 
testimony alone will not be enough to establish the 
occurrence of the alleged stressor.  In such cases, the 
record must contain service records or other corroborative 
evidence that substantiates or verifies the veteran's 
statements or testimony as to the occurrence of the claimed 
stressor.  See, e.g., West (Carlton) v. Brown, 7 Vet. App. 
70, 76 (1994).  See also Zarycki v. Brown, 6 Vet. App. 91, 98 
(1993).

In Doran v. Brown, 6 Vet. App. 283, 290-91 (1994), the Court 
stated that "the absence of corroboration in the service 
records, when there is nothing in the available records that 
is inconsistent with other evidence, does not relieve the BVA 
of its obligations to assess the credibility and probative 
value of the other evidence."
Also in Doran (and in West (Carlton) v. Brown, 7 Vet. App. 
70, 76 (1994) and Zarycki v. Brown, 6 Vet. App. 91, 98 
(1993)), the Court cited a provision of the VA ADJUDICATION 
PROCEDURE MANUAL M21-1 (M21-1), which since has been revised as 
to "Evidence of Stressors in Service" to read, in pertinent 
part, ... "[C]orroborating evidence of a stressor is not 
restricted to service records, but may be obtained from other 
sources."  Since the M21-1 October 1995 revision, the Court 
has held that the requirement in 38 C.F.R. § 3.304(f) for 
"credible supporting evidence" generally means that the 
"appellant's testimony, by itself, cannot establish the 
occurrence of a noncombat stressor."  See Moreau, 9 Vet. 
App. at 389-395 (1996); Cohen 10 Vet. App. at 128.  See also 
Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996).

There are exceptions to this general rule - including when 
the claim is predicated on an alleged personal assault.  In 
these limited situations, evidence from sources other than 
the veteran's service records may be used to corroborate the 
veteran's account of the stressor incident, such as:  records 
from law enforcement authorities, rape crisis centers, mental 
health counseling centers, hospitals or physicians; pregnancy 
tests or tests for sexually transmitted diseases; and 
statements from family members, roommates, fellow service 
members, or clergy.  Examples of behavior changes may 
constitute credible evidence of a stressor, including:  
a request for a transfer to another military duty assignment; 
deterioration in work performance; substance abuse; episodes 
of depression, panic attacks, or anxiety without an 
identifiable cause; or unexplained economic or social 
behavior changes.  VA will not deny a PTSD claim based on in-
service personal assault without first advising the claimant 
that evidence from sources other than the veteran's service 
records or evidence of behavior changes may constitute 
credible supporting evidence of the stressor and allowing him 
or her the opportunity to furnish this type of evidence or 
advise VA of potential sources of such evidence.  VA may 
submit any evidence to an appropriate medical or mental 
health professional for an opinion as to whether it indicates 
that a personal assault occurred.  See 38 C.F.R. § 3.304(f).

It equally deserves mentioning that, in cases involving 
personal assault, the existence of a stressor in service does 
not have to be proven by the "preponderance of the 
evidence" because this would be inconsistent with the 
benefit of the doubt, or equipoise, doctrine contained in 
38 U.S.C.A. § 5107(b).  See YR v. West, 11 Vet. App. 393, 399 
(1998).  See also Patton v. West, 12 Vet. App. 272, 279-280 
(1999).



Analysis

Based on the evidence of record, the Board finds that the 
preponderance of the evidence is against the Veteran's claim 
of entitlement to service connection for PTSD.

The Veteran has not been diagnosed with PTSD.  In this 
regard, the Board points out that the Veteran's available 
service treatment records do not show any evidence of 
treatment for or a diagnosis of PTSD; the Veteran repeatedly 
denied experiencing depression or excessive worry and 
psychiatric evaluations were normal.  See 38 C.F.R. 
§ 3.303(a) (service connection requires that the facts 
"affirmatively [show] inception or aggravation ... ."). 

Likewise, post-service VA and private treatment records are 
negative for evidence of treatment for or a diagnosis of 
PTSD.  While the Board acknowledges that the Veteran was 
evaluated for PTSD by the Reno Vet Center in February and 
March 2006, the evaluation results indicate that the Veteran 
did not meet the criteria for a diagnosis of PTSD.  See 
Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ("Congress 
specifically limits entitlement to service-connected disease 
or injury to cases where such incidents have resulted in a 
disability.").  See also Boyer v. West, 210 F.3d 1351, 1353 
(Fed. Cir. 2000) (a veteran seeking disability benefits must 
establish the existence of a disability and a connection 
between such veteran's service and the disability).

Likewise, the Board notes that the RO made repeated efforts 
to obtain information necessary to verify the Veteran's 
stressors, as additional information may have been gained to 
his benefit, but that the Veteran did not comply.  See Wood 
v. Derwinski, 1 Vet. App. 190, 193 (1991) ("The duty to 
assist is not ... a one-way street.  If a veteran wants help, 
he cannot passively wait for it in those circumstances where 
he may or should have information that is essential in 
obtaining the putative evidence.").  Thus, there currently 
is no persuasive medical nexus evidence of record indicating 
the Veteran developed PTSD during or as a result of his 
service in the military.  See Madden v. Gober, 125 F.3d 1477, 
1481 (1997) (in evaluating the evidence and rendering a 
decision on the merits, the Board is required to assess the 
credibility and probative value of proffered evidence in the 
context of the record as a whole).  

The Board observes that medical evidence generally is 
required to establish a medical diagnosis or to address 
questions of medical causation.  Lay assertions of medical 
status do not constitute competent medical evidence for these 
purposes.  Bostain v. West, 11 Vet. App. 124, 127 (1998); 
Routen v. Brown, 10 Vet. App. 183, 186 (1997).  Nevertheless, 
lay assertions may serve to support a claim for service 
connection by supporting the occurrence of lay-observable 
events or the presence of disability or symptoms of 
disability subject to lay observation.  See 38 U.S.C.A. 
§ 1153(a); 38 C.F.R. § 3.303(a); see also Jandreau v. 
Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) and Buchanan v. 
Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing 
lay evidence as potentially competent to support presence of 
disability even where not corroborated by contemporaneous 
medical evidence).  The Veteran has not shown, however, that 
he has the expertise required to diagnose PTSD.  Nor is the 
Veteran competent to offer an opinion regarding any causal 
relationship between this claimed disability and active 
service. While the Veteran's contentions have been considered 
carefully, these contentions are outweighed by the medical 
evidence of record showing that the Veteran does not 
currently have PTSD which could be attributed to active 
service.

As there is a preponderance of the evidence against the 
Veteran's claim, the benefit-of-the-doubt doctrine does not 
apply. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 
(2009); Alemany v. Brown, 9 Vet. App. 518, 519 (1996).




ORDER

The claim for service connection of PTSD is denied.



____________________________________________
V. L. JORDAN
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs