Citation Nr: 1123692 Decision Date: 06/22/11 Archive Date: 06/28/11 DOCKET NO. 10-11 326 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). ATTORNEY FOR THE BOARD J. N. Moats, Counsel INTRODUCTION The Veteran had active duty service from May 1990 to May 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in May 2009, a statement of the case was issued in January 2010, and a substantive appeal was received in February 2010. The Board observes that the RO previously denied this issue in February 2008. Subsequently, the Veteran's service personnel records were associated with the claims file in March 2008. Under VA regulations, if VA receives or associates with the claims folder relevant official service department records at any time after a decision is issued on a claim that had not been associated with the claims folder when VA first decided the claim, VA must reconsider the claim. 38 C.F.R. § 3.156(c). This regulation comprehends official service department records which presumably have been misplaced and have now been located and forwarded to VA. Id. In essence, the finality of any previous decision is vitiated by the association of additional, pertinent service department records, and the claim must be reconsidered. Given the new service records, the claim must be reconsidered without regard to the previous denial in February 2008. 38 C.F.R. § 3.156(c). The Board also observes that additional evidence was associated with the claims file prior to the expiration of the appeal period and is, thus, considered to have been filed in connection the original pending claim. 38 C.F.R. § 3.156(b). Accordingly, this claim is not considered a claim to reopen and will be considered on the merits. FINDINGS OF FACT 1. The Veteran's in-service combat stressors have been verified. 2. The Veteran does not currently suffer from PTSD. CONCLUSION OF LAW PTSD was not incurred in or aggravated during the Veteran's active duty service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R § 3.159(b)(1); Quartuccio v. Principi, 16 Vet.App. 183, 187 (2002). Duty to Notify The record shows that in an October 2007 VCAA letter, the appellant was informed of the information and evidence necessary to warrant entitlement to the benefit sought on appeal. Moreover, in an October 2008 letter, the RO asked for specific details concerning the Veteran's in-service stressors. The appellant was also advised of the types of evidence VA would assist him in obtaining as well as his own responsibilities with regard to identifying relevant evidence. See Quartuccio v. Principi, 16 Vet.App. 183 (2002); Charles v. Principi, 16 Vet.App. 370 (2002). The United States Court of Appeals for Veterans Claims' decision in Pelegrini v. Principi, 18 Vet.App. 112 (2004) held, in part, that a VCAA notice as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. In this case, the RO provided VCAA notice to the Veteran in October 2007, which was prior to the April 2009 rating decision. Accordingly, the requirements the Court set out in Pelegrini have been satisfied. Further, the notice requirements apply to all five elements of a service connection claim: 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. Dingess v. Nicholson, 19 Vet.App. 473 (2006). In the present appeal, the appellant was provided with notice of what type of information and evidence was needed to substantiate the claim for service connection. Further, the October 2007 letter gave notice of the types of evidence necessary to establish a disability rating and effective date for the disability on appeal. In sum, the Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claims, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Duty to Assist Furthermore, the Board finds that there has been substantial compliance with the assistance provisions set forth in the law and regulations. The record in this case includes service treatment and personnel records, lay statements and a VA examination report. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case and no further action is necessary. See generally 38 C.F.R. § 3.159(c)(4). No additional pertinent evidence has been identified by the claimant. The Veteran was afforded a VA examination in April 2009. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The examination report obtained contains sufficient information to decide the issue on appeal. See Massey v. Brown, 7 Vet.App. 204 (1994). Thus, the Board finds that a further examination is not necessary. For all the foregoing reasons, the Board concludes that VA's duties to the claimant have been fulfilled with respect to the issue on appeal. Analysis The issue before the Board involves a claim of entitlement to service connection for PTSD. Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). 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). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), 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. 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 inservice stressor. See 38 C.F.R. § 3.304(f). The provisions of 38 C.F.R. § 4.125(a) require that a diagnosis of a mental disorder conform to the Diagnostic and Statistical Manual, Fourth Edition (DSM-IV). Effective July 13, 2010, VA amended its adjudication regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the required in-service stressor. Specifically, the final rule amends 38 C.F.R. § 3.304(f) by redesignating current paragraphs (f)(3) and (f)(4) as paragraphs (f)(4) and (f)(5), respectively, and by adding a new paragraph (f)(3) that reads as follows: (f)(3) If a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of [PTSD] and that the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. The Veteran served in Somalia during Operation Restore Hope from December 1992 to February 1992. He was a MT Vehicle Operator in the 7th MT Bn. The RO determined that the Veteran's unit did receive threats from Somalians, and engaged the enemy when such threats were posed. The RO determined that the Veteran's in-service combat stressors were confirmed. Thus, the primary question in this case is whether the Veteran has been diagnosed with PTSD based on his verified in-service combat stressors. The Veteran was afforded a VA examination in April 2009 to specifically determine whether he suffered from PTSD due to his verified in-service stressors. The examiner reviewed the claims file. After examining the Veteran, the examiner diagnosed the Veteran with anxiety disorder, not otherwise specified, and opined that his symptoms were related to his service in Somalia. The Veteran has argued that this examination was insufficient. However, the VA examiner not only reviewed the claims file, but also examined the Veteran for the express purpose of ascertaining whether or not a medical diagnosis of PTSD was warranted. The examiner was aware of the Veteran's assignments and duties in Somalia, and as noted above, certain stressors have in fact been corroborated. Further, the examination was done by a Board Certified Psychiatrist. Accordingly, given that the examination report sets forth detailed examination findings in a manner which allows for informed appellate review under applicable VA laws and regulations, the Board finds the examination to be sufficient for appellate review. Further, based on this examination, the RO granted service connection for anxiety disorder, in the April 2009 rating decision. As the Veteran did not appeal the disability rating or effective date assigned, this matter is not before the Board. After reviewing the evidence of record, the Board must conclude that the Veteran does not suffer from PTSD. After examining the Veteran, the VA examiner was unable to render a diagnosis of PTSD. There is no medical evidence of record showing a diagnosis of PTSD. The Board has also considered statements from the Veteran and his wife describing his PTSD symptoms. Medical evidence is generally 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. Espiritu v. Derwinski, 2 Vet.App. 492, 494 (1992). Nevertheless, the Board acknowledges that 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. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see 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). Citing Buchanan and Jandreau, the Federal Circuit recently reiterated that it had previously and explicitly rejected the view that competent medical evidence is required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When applying the case law discussed above, here, the Veteran and his wife are competent to describe his psychiatric symptoms. However, in the instant case, a licensed medical professional has diagnosed the Veteran's psychiatric symptoms as anxiety disorder. Again, service connection has already been established for anxiety disorder. Importantly, the Veteran and his wife are not competent to render a diagnosis of PTSD as medical expertise is required to ascertain and diagnosis a certain psychiatric disability and the Veteran and his wife have not shown that they have such experience. In conclusion, the Board finds that the preponderance of the competent evidence of record is against a finding that there is the required medical diagnosis of current PTSD. Should a medical diagnosis of PTSD be rendered in the future, the Veteran may always request that his claim be reopened. ORDER Entitlement to service connection for PTSD is not warranted. The appeal is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs