Citation Nr: 1129733	
Decision Date: 08/11/11    Archive Date: 08/23/11

DOCKET NO.  10-11 978	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUE

Entitlement to service connection for post traumatic stress disorder (PTSD).  


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Evan M. Deichert, Associate Counsel


INTRODUCTION

The Veteran had an honorable period of active service from October 1951 to October 1953.  The Veteran afterward served in the United States Army, but this service has been characterized as dishonorable and thus, this period of service may not be considered for VA compensation purposes.  

This matter came before the Board of Veterans' Appeals (Board) on appeal from a May 2009 decision by the Department of Veterans Affairs (VA) Nashville, Tennessee Regional Office (RO). 

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).


FINDING OF FACT

There is no competent evidence establishing that the Veteran currently suffers from PTSD.  


CONCLUSION OF LAW

Post traumatic stress disorder was not incurred in or aggravated by his active service.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2010).


REASONS AND BASES FOR FINDING AND CONCLUSION

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. § 1110.  If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b).  Continuity of symptoms is required where a condition in service is noted but is not, in fact, chronic; continuity is also required where a diagnosis of chronicity may be legitimately questioned.  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 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d).  The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Service connection for PTSD requires a medical diagnosis of the disorder; credible supporting evidence of the claimed in-service stressor actually occurred; and a link, as established by medical evidence, between the current symptomatology and the claimed in-service stressor.  38 C.F.R. § 3.304(f).  In this case, the Veteran's claim must be denied, as the Veteran meets none of the criteria for service connection.  

First, there is no evidence that the Veteran currently suffers from PTSD or from any other psychiatric disorder.  The Veteran provided no medical information regarding his claim, and there are no VA medical records establishing that the Veteran currently suffers from PTSD.  

The Board acknowledges that, if found credible, the Veteran's lay statements could support a finding that he currently suffers from PTSD.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (stating that lay evidence may establish a diagnosis of a condition when the lay person can identify the medical condition, the lay person is reporting a contemporaneous diagnosis, or lay testimony describing symptoms supports a later diagnosis by a medical professional).  Here, however, there is no evidence that the Veteran is competent to state that he suffers from PTSD as opposed to any other mental condition.  Further, as there is absolutely no medical evidence whatsoever, his claim of suffering from PTSD can neither be considered to be reporting a contemporaneous diagnosis nor considered supported by a later medical diagnosis.  Thus, the Board finds his report of suffering from PTSD not to be competent.  Therefore, there is no evidence that the Veteran currently suffers from PTSD or from any other psychiatric condition.  

The Veteran has also not truly provided a stressor.  Though the RO has twice asked the Veteran to provide more information regarding his claimed stressors, he has simply replied that he should be entitled to a combat presumption because he flew in over 100 missions during the Korean War.  Regardless of whether this Veteran is entitled to a combat presumption, even such veterans who are entitled to that presumption must provide some narrative or some evidence of a stressor; their service alone does not qualify as a stressor.  See 38 C.F.R. § 3.304(f)(2) (stating that veterans who engaged in combat may use lay testimony alone to establish a stressor provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service) (emphasis added).  

Here, aside from stating that he participated in combat missions over Korea, the Veteran has not provided any other information regarding his claimed stressor.  Absent any further explanation, the Board cannot find his stressor statements to be sufficient and therefore must find that there is no supporting evidence of any claimed in-service stressor.

Also, the Veteran's claim does not need to be evaluated as one for an acquired psychiatric disorder in general.  In Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the Court of Appeals for Veterans Claims (Court) ruled that when a claimant seeks service connection for PTSD and nothing more, such a claim must be "considered a claim for any mental disability that may reasonably be encompassed by several factors including: the claimant's description of the claim; the symptoms the claimant describes, and the information" submitted by the claimant or obtained by VA. 

The Clemons decision does not, however, require the Board to evaluate all claims limited to PTSD as claims for psychiatric disorders in general.  Instead, such an analysis need only be performed when a psychiatric disorder or symptoms thereof are present.  As the Court stated: "quite a different result is reached when the claimant requests compensation for a particular diagnosis but, after proper development, the medical evidence reveals no current condition related to the symptoms suffered."  Id. at 7 (emphasis in original).  The Court elucidated this statement with an example.  According to the Court, if an appellant filed a claim for PTSD "but no current mental condition whatsoever was diagnosed, the claim could have been properly denied for lack of a diagnosis for any current mental condition."  Id. (citing 38 U.S.C. § 1110; Caluza v. Brown, 7 Vet. App. 498, 506 (1995)).

The situation in the case before the Board is similar to the example provided by the Court.  Here, the Veteran is seeking service connection for PTSD, but there is no evidence that he suffers from any mental condition.  Accordingly, an analysis under Clemons of whether the Veteran may be service connected for a psychiatric disorder in general is unwarranted.

It is axiomatic that "in the absence of proof of a present disability, there can be no valid claim."  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  Here, as there is no evidence that the Veteran has been diagnosed as suffering from PTSD and there is no evidence regarding the Veteran's stressors, the Board must find that the criteria for service connection have not been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304.  

Finally, 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, 3.326(a) (2010).  

Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in December 2008 - prior to the initial RO decision in this matter - that addressed the notice elements.  The letter informed the Veteran of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence.  This notice informed the Veteran of all of the elements of how service connection is established, including how VA assigns disability ratings and how an effective date is established.  See Dingess v. Nicholson, 19 Vet. App. 473 (2006).

Next, VA has a duty to assist the Veteran in the development of his claim.  This duty includes assisting him in the procurement of both service treatment records and other pertinent medical records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  In this case, the RO has obtained and associated with the claims file the Veteran's service treatment records and service personnel records.  As noted above, there is no evidence whatsoever that the Veteran currently suffers from PTSD.  Though being informed of how the Veteran can substantiate his claim and what evidence VA would obtain on his behalf, the Veteran did not provide any medical records on his own accord, nor did he provide a release to allow VA to obtain these records on his behalf.  The VA's duty to assist is not a one-way street, and a Veteran cannot wait for assistance when he has information essential to the adjudication of his claim.  Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).  

A VA compensation and pension examination is not required in this case.  The Board may order an examination when the record shows that the Veteran has a current disability, indicates that this disability may be associated with the Veteran's active service, and does not contain sufficient evidence for the Board to make a decision on the issue.  38 U.S.C.A. § 5103A(d)(2).  If the record indicates that there may be a nexus between the current disability and any service related incident, then the Board may order an RO to have a claimant examined.  McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006).  In this case, there is no competent indication that the Veteran currently suffers from PTSD.  In the absence of any competent evidence showing that the Veteran currently suffers from PTSD, the Board may consider the evidence already in the file without requiring a VA examination.

The Board notes that the evidence already of record is adequate to allow resolution of the appeal.  Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).  

The Board finds that all necessary development has been accomplished, and appellate review does not therefore result in prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  




ORDER

Service connection for PTSD is denied.  



____________________________________________
MICHAEL E. KILCOYNE 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs