Citation Nr: 1105083 Decision Date: 02/07/11 Archive Date: 02/14/11 DOCKET NO. 99-21 929A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for post traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. McBrine, Counsel INTRODUCTION The Veteran served on active duty from September 1955 to April 1958. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 1998 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in No. Little Rock, Arkansas, which denied entitlement to the benefit currently sought on appeal. The appellant was notified of that decision by a June 5, 1998 letter from the Atlanta, Georgia, VARO, which thereafter certified this case to the Board. Additional development was undertaken by the Board in September 2002 under 38 C.F.R. § 19.9(a)(2) (2002); however, the Court of Appeals for the Federal Circuit invalidated that provision in 2003. See Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). Therefore, in June 2004, the Board remanded the Veteran's appeal. Further development was requested. The file was returned to the Board in November 2008. In January 2009, this issue, along with the issues of service connection for right and left hip disabilities, were again remanded for further development. The Veteran was granted service connection for right and left hip disabilities by a July 2010 rating decision; therefore these issues are no longer before the Board. As such, the remaining issue in appellate status is as noted above. The Veteran's representation has changed since the appeal was previously before the Board. Specifically, in October 2005, the Veteran's private attorney withdrew her representation. That same month, the Veteran executed a VA Form 22-22 in favor of Disabled American Veterans. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT The preponderance of the evidence of record indicates that the Veteran does not have a diagnosis of PTSD related to any in service verifiable stressors. CONCLUSION OF LAW PTSD was not incurred in or aggravated by active military service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). 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; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b) (1). Here, the duty to notify was satisfied by way of letters sent to the Veteran in March 2003, March 2007, December 2007, January 2009, and March 2009. These letters collectively informed the Veteran of what evidence was needed to establish the benefits sought, of what VA would do or had done, and of what evidence the appellant should provide. Therefore, the Board finds that any notice errors did not affect the essential fairness of this adjudication, and that it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal. The appellant was also specifically informed of the law as it pertains to effective dates by the March 2009 letter. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The VA has also done everything reasonably possible to assist the appellant with respect to his claim for benefits that is being finally decided on this appeal, such as obtaining VA and private medical records, and obtaining information from the U.S. Army and Joint Services Records Research Center (JSRRC) and the National Personnel Records Center (NPRC). Consequently, Board finds that the duty to notify and assist has been satisfied in this appeal. The Veteran and his representative contend that he has a current diagnosis of PTSD related to stressful experiences in service, particularly witnessing a fellow soldier being killed during a parachute demonstration, general basic training, and general discrimination. Applicable laws provide that in order to establish service connection for a claimed disability, the facts, as shown by the evidence, must demonstrate that a particular disease or injury resulting in current disability was incurred during active service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection may 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(b). The chronicity provisions of 38 C.F.R. § 3.303(b) are applicable where the evidence, regardless of its date, shows that the Veteran had a chronic condition in service or during an applicable presumption period and still has such condition. Such evidence must be medical unless it relates to the condition as to which, under Court case law, lay observation is competent. Savage v. Gober, 10 Vet. App. 488, 498 (1997). In addition, if a condition noted during service is not shown to be chronic then generally a showing of continuity of symptomatology after service is required for service connection. Service connection for PTSD requires (i) medical evidence diagnosing PTSD, (ii) a link, established by medical evidence, between current symptoms and an in-service stressor, and (iii) credible supporting evidence that the in-service stressor occurred. 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 that 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). See also 38 U.S.C.A. § 1154(b); Cohen v. Brown, 10 Vet. App. 128 (1997). The United States Court of Appeals for Veterans Claims (Court) has held that "where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required." Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); see also Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Taking into account all relevant evidence, the Board finds that service connection is not warranted for PTSD. In this regard, while the Veteran's recent treatment records do show a diagnosis of PTSD, the Veteran continues to have no verified in service stressors on which this diagnosis can be based. A VA examination for other purposes in September 1971 noted the Veteran to have a slightly anxious expression, but found no evidence of a psychiatric disorder. The evidence of record shows that the Veteran first began to complain of a "nerve" condition, due to repeated jumps in service, in a statement received at the RO in November 1974, over 16 years after his separation from service. A May 1975 RO decision denied service connection for a nervous condition, as there was no evidence at that time of the Veteran being treated for a nervous condition during or after service. This decision was confirmed by an October 1975 RO decision. An April 1979 private psychological evaluation report noted that the Veteran to be nondepressed and nonanxious with no evidence of any kind of sociopathy. The earliest evidence of record showing a diagnosis of PTSD is from 1997, approximately 41 years after the Veteran's separation from service. The Veteran's alleged stressor of witnessing a fellow soldier being killed during a parachute training exercise in 1957 was researched. However, records from the U.S. Army and Joint Services Records Research Center (JSRRC) and the National Personnel Records Center (NPRC) were reviewed, and showed no casualty in the Veteran's division due to a parachute training exercise during that time. While the Veteran has claimed that in fact he was injured during this incident when he fell on the reported casualty's parachute, the Veteran's service medical records do not show any specific such accident. Further, while the Veteran has received recent diagnoses of PTSD, the Veteran has reported this related to this alleged parachute accident, and at no time has his diagnosis been related to combat training or any other in service stressor. As such, while the Veteran does have a diagnosis of PTSD, he does not have a confirmed stressor on which this diagnosis may be based. The Board does note that 38 C.F.R. § 3.304(f) was revised during the course of this appeal, however, as it specifically refers to hostile military or terrorist activity, the Board does not find it applicable in the current case, in which the Veteran was not exposed to combat, nor does he claim his diagnosis of PTSD is related to combat. Thus, with no evidence of any diagnosis of PTSD until over 40 years after the Veteran's separation from service, and with no evidence of any confirmed stressors, the Board finds that the preponderance of the evidence of record is against a grant of service connection for PTSD. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App 49, 55-57 (1990). The Board also notes that a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide a claim, but (a) contains competent lay or medical evidence of a current disability; (b) establishes that the Veteran suffered an event, injury, or disease during service; and (c) indicates that the claimed disability may be associated with the established event, injury, or disease in service. See 38 C.F.R. § 3.159(c)(4) (2004); see Charles v. Principi, 16 Vet. App. 370 (2002). However, in this case, as there is no evidence of record establishing that the Veteran suffered an event, injury, or disease during service, the Board does not find a medical opinion or examination to be required in this case. ORDER Entitlement to service connection for post traumatic stress disorder (PTSD) is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs