Citation Nr: 1211167 Decision Date: 03/28/12 Archive Date: 04/05/12 DOCKET NO. 09-01 410 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for posttraumatic stress disorder. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD P. Childers, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from August 1968 to June 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in January 2008 of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2010, the Veteran appeared at hearing before a Decision Review Officer. A transcript of the hearing is in the Veteran's file. The record raises the claim of service connection for a psychiatric disorder other than posttraumatic stress disorder, which is referred to the RO for appropriate action. See Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (providing that a claimant without medical expertise cannot be expected to precisely delineate the diagnosis of his mental illness). FINDING OF FACT The Veteran did not serve in combat, posttraumatic stress disorder was not diagnosed in service, there is no credible evidence of fear of hostile military or terrorist activity, or credible evidence of a noncombat in-service stressor to support a diagnosis of posttraumatic stress disorder that conforms to the Diagnostic and Statistical Manual of Mental Disorders, 4th ed., (DSM-IV), of the American Psychiatric Association in accordance with 38 C.F.R. § 4.125(a). CONCLUSION OF LAW Posttraumatic stress disorder was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.304(f) (2011). 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 pre-adjudication CAA notice by letter, dated in September 2007. 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 RO has obtained the service records, VA records, and private records. 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). VA has not conducted a medical inquiry in the form of a VA compensation examination in an effort to substantiate the claim because there is no credible evidence of the alleged in-service stressor and without credible supporting evidence, the in-service element of the claim under 38 C.F.R. § 3.159(c)(4)(i)(B) is not substantiated and, therefore, a medical examination or medical opinion is not required to decide the claim. 38 C.F.R. § 3.159(c)(4). 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 service personnel records show that the Veteran was in Vietnam for about ten days in April 1969, before he was sent to Korea. The service treatment records show that in April 1970 the Veteran was referred for a psychiatric evaluation, pending an administrative discharge, because of frequent periods of unauthorized absences and other disciplinary problems. The results of the psychiatric evaluation are not in the record. On separation examination in June 1970, there was no complaint, finding, history, or diagnosis of a psychiatric disorder. The Veteran was separated from service in June 1970 and the character of service was honorable. After service, VA records in May 2007 show a diagnosis of posttraumatic stress disorder. It was noted that the Veteran has flashbacks of the "war." In a statement in 2008 and in testimony in February 2010, the Veteran describe an alleged in-service fatal encounter with Vietnamese man in a bar fight as the stressor for posttraumatic stress disorder. Principles of Service Connection and Posttraumatic Stress Disorder Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. 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 first diagnosed 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). In addition, service connection for posttraumatic stress disorder (PTSD) requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), that is, a diagnosis that conforms to the Diagnostic and Statistical Manual of Mental Disorders (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. 38 C.F.R. § 3.304(f). Unless posttraumatic stress disorder is diagnosed in service and the in-service stressor is related to service or the in-service stressor is related to combat or to fear of hostile military or terrorist activity or to a prisoner -of-war experience or to a personal assault, the Veteran's lay testimony alone may not establish the occurrence of an alleged noncombat in-service stressor and the record must contain credible supporting evidence that the alleged noncombat in-service stressor actually occurred. 38 C.F.R. § 3.304(f) (as amended 75 Fed. Reg. 39,847, 39, 852 (July 13, 2010); see Moreua v. Brown, 9 Vet. App. 389, 396 (1996) (When a claim for PTSD is based on a noncombat stressor, the noncombat veteran's testimony alone is insufficient proof of a stressor.). "Fear of hostile military or terrorist activities" means that a Veteran experienced, witnessed, or was confronted with an event that involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others, and the Veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. 38 C.F.R. § 3.304(f)(3). Evidentiary Standards VA must give due consideration to all pertinent lay and medical evidence in a case where a veteran is seeking service connection. 38 U.S.C.A. § 1154(a). The Veteran was not in combat and the combat provisions of 38 U.S.C.A. § 1154(b) do not apply. Competency is a legal concept in determining whether medical or lay evidence may be considered, in other words, whether the evidence is admissible as distinguished from weight and credibility, a factual determination going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). Analysis On the basis of the service treatment records alone, posttraumatic stress disorder was not affirmatively shown during service and service connection under 38 U.S.C.A. § 1110 and 38 C.F.R. § 3.303(a) is not established. Although the Veteran was referred for a psychiatric evaluation, the referral was required as the Veteran was facing several charges for unauthorized absence and other disciplinary problems, not for any specific psychiatric symptoms. As there is no notation of a psychiatric disorder during service, the principles of service connection, pertaining to chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b), do not apply. See Savage v. Gober, 10 Vet. App. 488, 497 (1997) (continuity of symptomatology requires that the evidence either contemporaneous with service or otherwise show only that a condition was observed, that is, noted, during service, but does not require that such observation be recorded during service). As for service connection based on the initial diagnosis after service, posttraumatic stress disorder was first diagnosed in May 2007. As for the alleged noncombat, in-service stressor, a fatal bar fight initiated by the Veteran, the Veteran's statement alone is insufficient to establish the stressor. In the absence of credible evidence of an in-service stressor, there is no possible association with service, and VA is not required to further develop the claim by affording the Veteran a VA examination or by obtaining a VA medical opinion under the duty to assist. 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). To the extent the Veteran has expressed the opinion that he has PTSD related to service, there is a specific legal requirement that 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). The Veteran as a lay person is not to competent to offer an opinion that posttraumatic stress disorder is related to service and it has not been established that the Veteran is otherwise qualified through specialized education, training, or experience to state that he has posttraumatic stress disorder or to offer an opinion on a condition that is medical in nature. Therefore, the Board rejects the Veteran's statements and testimony that is, the lay evidence, as competent evidence that the Veteran has posttraumatic stress disorder related to service. As for the diagnosis of posttraumatic stress disorder by VA, the diagnosis was dependent upon the Veteran's account of an in-service stressor. The Board is not bound to accept a medical opinion that is based on history related by the Veteran, where that history is based upon inaccurate facts. Swann v. Brown, 5 Vet. App. 229, 233 (1993). While the Board cannot reject the medical opinion solely because it is based on a history related by the Veteran, the critical question is whether the history is credible in light of all the evidence. Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005); Coburn v. Nicholson, 19 Vet. App. 427, 432 (2006) (Board may reject such statements of a veteran if rebutted by the overall weight of the evidence). As a diagnosis of post-traumatic stress disorder under 38 C.F.R. § 3.304(f) is predicated on credible evidence of in-service stressor and as there is no such credible evidence in this case, as the Veteran's statement alone about a noncombat stressor cannot establish the in-service stressor and as the Veteran did not serve in combat, as posttraumatic stress disorder was not diagnosed in service, as there is no credible evidence of fear of hostile military or terrorist activity, or credible evidence of a noncombat in-service stressor other than the Veteran's own statements and testimony, the Board rejects the current diagnosis of posttraumatic stress disorder as related to service. As the preponderance of the evidence is against the claim under 38 C.F.R. § 3.303(d) and 38 C.F.R. § 3.304(f), 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