Citation Nr: 1127598	
Decision Date: 07/25/11    Archive Date: 08/02/11

DOCKET NO.  08-22 351	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Albuquerque, New Mexico


THE ISSUE

Entitlement to service connection for posttraumatic stress disorder.


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

P. Childers, Counsel







INTRODUCTION

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  

The Veteran, who is the appellant, served on active duty from February 1954 to February 1957.

This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in February 2007 of a Department of Veterans Affairs (VA) Regional Office (RO).  In the rating decision, the RO denied the Veteran's application to reopen the claim of service connection for schizophrenia, but the Veteran did not appeal that part of the RO's rating, and the claim is not before the Board. 

In September 2008, the Veteran had a hearing with a Decision Review Officer.  A transcript of the hearing is in the Veteran's file.

The Veteran is representing himself in this matter.


FINDING OF FACT

The Veteran did not serve in combat and there is no diagnosis of posttraumatic stress disorder since service or currently. 


CONCLUSION OF LAW

Posttraumatic stress disorder was not incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.304(f) (2010).



Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim.  38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159.

Duty to Notify

Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide.

Also, the VCAA notice requirements apply to all five elements of a service connection claim.  The five elements are: (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).

The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).

The RO provided VCAA notice by letter, dated in August 2006.  The Veteran was notified of the type of evidence needed to substantiate the claim of service connection; namely, evidence of an injury or disease or event, causing an injury or disease, during service; evidence of a current disability; and evidence of a relationship between the current disability and the injury or disease or event, causing an injury or disease, during service.  


The VCAA notice included the provisions for the effective date of a claim and for the degree of disability assignable.  The Veteran was also provided a posttraumatic stress disorder questionnaire asking for information or evidence about any in-service stressor.

The Veteran was further notified that VA would obtain service records, VA records, and records of other Federal agencies, and that he could submit records not in the custody of a Federal agency, such as private medical records or authorize VA to obtain private medical records on his behalf.  

As for the content and the timing of the VCAA notice, the document complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370, 374 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004) (pre-adjudication VCAA notice); and of Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006) (notice of the elements of the claim).

Duty to Assist

Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim.  The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on a claim.  38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i)(C); McLendon v. Nicholson, 20 Vet. App. 79 (2006).

The RO has obtained the service treatment records, service personnel records, VA records, and private records.  The Veteran also testified regarding his claim for posttraumatic stress disorder, and was afforded a VA examination.  



The VA examination was adequate because the examiner considered the Veteran's pertinent medical history, his lay assertions, and his current complaints, and because it included a thorough mental evaluation.  Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)).

As the Veteran has not identified any additional evidence pertinent to the claim and as there are no additional records to obtain, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist.


REASONS AND BASES FOR FINDING AND CONCLUSION

Facts 

The  DD-214 shows that the Veteran received a National Defense Service Medal and was recommended for reenlistment.  The service personnel records show that he served in Korea.  

The service treatment records, including hospital records, document treatment for alcohol intoxication and brawling.  In September1954, informs that the Veteran was brought to an aid Station in a state of violent drunkenness.  On hospitalization, the Veteran as described as intoxicated and in an irrational state.  Physical examination found bruises about the throat and extremities.  After a few days in an alcohol recovery ward the Veteran stated that he felt well except for a headache.  The Veteran was discharged from the hospital as "fit for duty" on October 4, 1954.  

A hospital record in December 1954 shows that the Veteran was treated for a blow to the eye sustained in a brawl.  The Veteran had the smell of alcohol and he appeared irrational.  As the Veteran had thoughts of self destruction, he was referred for a psychiatric consultation.   

On psychiatric evaluation in December 1954, the Veteran was described as negativistic and angry.  He stated that he felt responsible for a childhood friend's death, and admitted to feelings of self destruction.  The physician stated that the Veteran was very close to being psychotically depressed and should be hospitalized in a psychiatric unit.  

On subsequent hospitalization, the diagnosis was antisocial reaction manifested by sullen attitude, history of much combative and vengeful activity, and frequent drinking bouts.  The Veteran was treated for a self-inflicted wound with a razor blade, described as a superficial laceration of the Veteran's left wrist.  

In February 1957, the Veteran separated from service.  The service personnel records show that he was offered reenlistment based on good conduct.

After service VA records in 1963 included hospital records, which show treatment for a psychosis.  

In September 2008, the Veteran testified that he was sent to Korea around August 1954.  He also testified that he had a sergeant that would not promote him.  

On VA examination in November 2010 the Veteran stated that he worked in a saw mill during service, and he complained that he was not promoted during service like his comrades.  He stated that he was beaten up by a fellow Marine and that he was knocked unconscious and woke up 3 days later.  He denied any disciplinary problems or combat experience during service.  According to the examiner, the Veteran's alleged in-service stressors do not meet the traumatic stressor criteria required for a diagnosis of posttraumatic stress disorder.  The diagnosis was schizophrenia.





Principles and Theories of Service Connection

A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service.  38 U.S.C.A. §§ 1110 and 1131.  

Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004).

Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service.  This may be accomplished by affirmatively showing inception or aggravation during service.  38 C.F.R. § 3.303(a). 

For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic."  Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). 

Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service.  38 C.F.R. § 3.303(d). 




Service connection for posttraumatic stress disorder requires medical evidence diagnosing the condition in accordance with the provisions of 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and inservice stressors; and credible supporting evidence that the claimed in service stressor or stressors occurred.  38 C.F.R. § 3.303(f).

If the evidence establishes that a Veteran engaged in combat with the enemy or the stressor is related to fear of hostile military or terrorist activity and the claimed stressor is related to thereto, 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.  Otherwise, the record must contain credible supporting evidence that the alleged in-service stressor actually occurred, and the Veteran's statements alone are not sufficient to establish the occurrence of the claimed in-service stressors.  38 C.F.R. § 3.304(f) (as amended 75 Fed. Reg. 39,847, 39, 852 (July 13, 2010)).

Analysis

Although the Veteran served in Korea, he is not a combat Veteran, so the provisions of 38 U.S.C.A. § 1154(b) are not applicable in this case.  In addition, he does not allege a diagnosis of posttraumatic stress disorder during service, or a fear of hostile military or terrorist activity, or a personal assault and the provisions of 38 C.F.R. § 3.304(f), pertaining to these types of in-service stressors are not applicable in this case.  

On the basis of the service treatment records alone, posttraumatic stress disorder was not affirmatively shown to have had onset during service, and service connection under 38 U.S.C.A. §§ 1110 and 1131 and 38 C.F.R. § 3.303(a) is not established.  



By regulation, the diagnosis of posttraumatic stress disorder requires medical evidence diagnosing the condition in accordance 38 C.F.R. § 4.125, that is, a diagnosis that conforms to the Diagnostic and Statistical Manual of Mental Disorders (DSM- IV). 38 C.F.R. § 3.304(f).

As the record now stands, there is no satisfactory proof that the Veteran has a current diagnosis of posttraumatic stress disorder that conforms to the Diagnostic and Statistical Manual of Mental Disorders (DSM- IV).  In the absence of proof of present disability, there is no valid claim of service connection for posttraumatic stress disorder.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).

As for the Veteran's statement that he has posttraumatic stress disorder, to the extent that the statement is offered as evidence of the disorder, posttraumatic stress disorder is not a condition under case law where lay observation has been found to be competent to establish a diagnosis, and the determination as to the presence of posttraumatic stress disorder therefore is medical in nature, that is, not capable of lay observation.  Savage v. Gober, 10 Vet. App. 488, 498 (1997) (On the question of whether the veteran has a chronic condition since service, the evidence must be medical unless it relates to a condition as to which, under case law, lay observation is competent); Barr v. Nicholson, 21 Vet. App. 303 (2007) (Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation).

Where, as here, there is a question of medical diagnosis, not capable of lay observation, competent medical evidence is required to substantiate the claim. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis or opinion. 38 C.F.R. § 3.159. 





As a lay person, the Veteran is not qualified through specialized education, training, or experience to offer an opinion on a medical diagnosis. For this reason, the Board rejects the Veteran's statement as competent evidence that he has posttraumatic stress disorder.

Also, under certain circumstances, lay evidence may establish a diagnosis of a simple medical condition.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

As previously explained, by regulation the diagnosis of posttraumatic stress disorder requires medical evidence diagnosing the condition in accordance 38 C.F.R. § 4.125, that is, a diagnosis that conforms to the Diagnostic and Statistical Manual of Mental Disorders (DSM- IV). 38 C.F.R. § 3.304(f).  For this reason, posttraumatic stress disorder is not a simple medical condition that a lay person is competent to identify, and the Board rejects the statements of the Veteran that he has posttraumatic stress disorder because it is not a simple medical condition. Jandreau at 1377 (Fed. Cir. 2007).

In the absence of competent and credible evidence of a current diagnosis of posttraumatic stress disorder, the preponderance of the evidence is against the claim and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b).


ORDER

Service connection for posttraumatic stress disorder is denied.


____________________________________________
George E. Guido Jr. 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs