Citation Nr: 1301113 Decision Date: 01/10/13 Archive Date: 01/16/13 DOCKET NO. 10-35 833 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for posttraumatic stress disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Whitehead, Counsel INTRODUCTION The Veteran served on active duty from September 1943 to December 1945, from June 1946 to April 1949, and from September 1949 to October 1952. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in Louisville, Kentucky (RO). This appeal has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2012). FINDING OF FACT The evidence of record does not include a current diagnosis of posttraumatic stress disorder related to the Veteran's military service. CONCLUSION OF LAW Posttraumatic stress disorder was not incurred in active military service. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 4.125 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duty to Notify and Assist With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Proper notice from VA must inform the claimant of any information and medical or lay 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements apply to all five elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. The RO's August 2009 letter advised the Veteran of the foregoing elements of the notice requirements. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); see also Bernard v. Brown, 4 Vet. App. 384, 394 (1993). This letter also provided the Veteran with notice of what type of information and evidence was needed to establish disability ratings, as well as notice of the type of evidence necessary to establish an effective date. See Dingess/Hartman, 19 Vet. App. at 486. Accordingly, with this letter, the RO effectively satisfied the remaining notice requirements with respect to the issue on appeal. In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records, as well as identified private and VA medical treatment records have been obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The claim was remanded in July 2011 so that the RO could attempt to obtain any records related to the Veteran's claim for benefits from the Social Security Administration (SSA). In August 20011, the SSA informed the RO that the Veteran never filed a claim for disability benefits and that the records from his application for retirement benefits had been destroyed. The RO notified the Veteran of the unavailability of any disability benefits records from the SSA in a September 2011 letter. During the course of the appeal, the Veteran identified receiving private medical treatment from Drs. D., H., C., Z., and M. In a July 2012 letter, the RO informed the Veteran that the authorization form he submitted to VA to request the treatment records from these physicians was no longer valid. He was provided with a new authorization form to obtain the identified records. However, the Veteran did not respond to the letter by submitting the release form for his private physicians. While VA has a duty to assist veterans in obtaining information, there is a corresponding duty on the part of the veteran to cooperate with VA in developing a claim. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (noting that "[t]he duty to assist is not always a one-way street"). Accordingly, the Board finds that a remand to secure any additional records is not required. The Veteran provided testimony during a video conference hearing held at the RO in May 2011. Following the hearing, the claim was remanded to the RO in July 2011 for additional development. The Board finds that there has been substantial compliance with its July 2011 remand as the RO has attempted to obtain the Veteran's SSA and private medical records. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Additionally, VA provided the Veteran with a November 2009 VA examination to determine the nature and etiology of the claimed psychiatric disorder currently on appeal. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159; see McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). This medical examination was adequate, as it was based upon a complete review of the evidence of record, consideration of the Veteran's lay statements, and clinical examination of the Veteran. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The examiner provided an opinion as to the nature and etiology of the Veteran's current psychiatric disorder. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486. Service Connection for PTSD Generally, service connection may be granted for disability due to a disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. In addition, 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(d). In order to establish service connection for a claimed disorder, the following must be shown: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet. App. 341, 346 (1999). 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. 38 C.F.R. § 3.304(f). However, if the record indicates that a veteran did not engage in combat, his or her alleged stressors must be established by official service records or other credible supporting evidence. 38 C.F.R. §§ 3.304(f); Cohen v. Brown, 10 Vet. App. 128 (1997); Doran v. Brown, 6 Vet. App. 283 (1994). The regulatory amendment of "credible supporting evidence" means that "the Veteran's testimony, by itself, cannot, as a matter of law, establish the occurrence of a non-combat stressor." Dizoglio v. Brown, 9 Vet. App. 163. In addition to demonstrating the existence of a stressor, the facts must also establish that the alleged stressful event was sufficient to give rise to PTSD. Zarycki v. Brown, 6 Vet. App. 91, 98-99 (1993). Further, the sufficiency of the stressor is a medical determination and, therefore, adjudicators may not render a determination on this point in the absence of independent medical evidence. West v. Brown, 7 Vet. App. 70 (1994). Effective July 13, 2010, the criteria for verifying in-service stressors were amended. The amendment states that, if (1) the Veteran's claimed stressor is related to his/her fear of hostile military or terrorist activity; (2) the Veteran response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror; (3) 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 relates the claimed stressor to the Veteran's symptoms; and (4) the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service, then the Veteran's lay statements alone may establish the occurrence of the claimed in-service stressor unless there is clear and convincing evidence to the contrary. 38 C.F.R. § 3.304(f)(3). "Fear of hostile military or terrorist activity" means that the 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. Id. Examples include actual or potential improvised explosive device; vehicle-embedded explosive device; incoming artillery, rocket or mortar fire; grenade; small-arms fire, including suspected sniper fire; or an attack upon friendly military aircraft. Id. The service personnel records document the Veteran's service in the Army from September 1943 to December 1945, from June 1946 to April 1949, and from September 1949 to October 1952. These records reflect that he participated in combat in Europe during World War II while assigned to the 2nd Armored Division. Given this service, the amended provisions of 38 C.F.R. 3.304(f) apply in this case. Service treatment records show that the Veteran experienced psychiatric symptomatology while on active duty, but do not show that he was diagnosed with PTSD while in service. Records dated in August 1946, September 1946, January 1947 reveal a diagnosis of anxiety state. An October 1947 service treatment record includes his report of having somatic complaints and feeling nervous during the one and half years he was in combat. The assessment revealed a diagnosis of passive dependency reaction manifested by an array of psychosomatic complaints. No psychiatric diagnosis was provided on the October 1952 separation report of medical examination. Post-separation VA medical records document the Veteran's reports of having nightmares, flashbacks and sleep impairments, but do not include a PTSD diagnosis. A June 2009 medical record reveals that the Veteran had a positive PTSD screening. In November 2009, the Veteran underwent a VA PTSD examination. He described his service during World War II, to include participation in battles in France, Belgium, Holland, and Germany. He described feeling terrified during his service and having thoughts that he may die. Based on the results of the clinical assessment, the examiner determined that the Veteran did not meet the full criteria for PTSD. Instead, the examination revealed a diagnosis of anxiety disorder, not otherwise specified, which the examiner attributed to the Veteran's experience in combat during World War II. In the February 2010 rating decision, the RO granted service connection for an anxiety disorder based on the November 2009 VA examiner's opinion. Given the above, the preponderance of the evidence is against the claim for service connection for PTSD. The evidence dated since the time that the Veteran filed his claim for service connection in 2009 does not include a diagnosis of PTSD. There is no objective evidence of record showing that the Veteran currently has PTSD. See Mclain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that the requirement that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ("Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. . . . In the absence of proof of present disability there can be no valid claim."). With no evidence of a current disability, service connection for PTSD is not warranted. Accordingly, the claim for service connection for PTSD must be denied. 38 U.S.C.A. § 5107(b). In reaching this determination, the Board acknowledges that the Veteran's claimed military stressors are related to his service during World War II. The Board recognizes that the new amendment to the regulation applicable to claims for service connection for PTSD is applicable in this case in light of the Veteran's verified service in Europe during World War II. See 38 C.F.R. § 3.304(f). This amendment relates only to the requirements for establishing an in-service stressor, however, and does not change the requirement that a Veteran seeking service connection for PTSD be diagnosed with that disability in accordance with DSM-IV. Id. VA regulations still require that a service connection claim be accompanied by evidence which establishes that the claimant currently has a disability. Rabideau v. Derwinski, 2 Vet. App. 141, 144 (19920; Brammer, 3 Vet. App. at 225. Service connection is not warranted in the absence of proof of current disability. Absent evidence of current disability of PTSD which could be attributed to active service, service connection for PTSD is not warranted. In addition to the medical evidence, the Board has also considered the Veteran's statements that he has PTSD due to his military service. In this regard, the Board finds the Veteran's statements as to the symptomatology associated with the claimed disorder and his military experiences to be both competent and credible. A veteran's lay statements may be competent to support a claim for service connection where the events or the presence of disability or symptoms of a disability are subject to lay observation. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a), 3.159(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (2006). However, a chronic psychiatric disorder is not a disability subject to lay opinions as to diagnosis and etiology. While some symptoms of a psychiatric disorder, such as sleep impairments, may be reported by a layperson, the diagnosis and etiology of the disorder require medical training. The Veteran does not have the medical expertise to diagnose himself with an acquired psychiatric disorder, nor does he have the medical expertise to provide an opinion regarding its etiology. Thus, the Veteran's lay assertions as to the etiology of the claimed psychiatric disorder are not competent or sufficient in this instance. Jandreau, 492 F.3d 1372. Service connection has been awarded for an anxiety disorder related to the Veteran's World War II service. The symptoms that the Veteran identifies as due to the claimed PTSD disorder are the same as those attributed to his service-connected anxiety disability. Thus, the Veteran is presently receiving compensation for his psychiatric symptomatology. Moreover, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). If service connection were to be awarded for another psychiatric disability, the Veteran would receive no greater compensation as any service-connected psychiatric disorder would be rated under the same schedular criteria as used for his anxiety disorder disability. Separate ratings for anxiety and/or PTSD would constitute an evaluation of the same disability under various diagnoses, known as "pyramiding," which is generally to be avoided. 38 C.F.R. § 4.14. Accordingly, service connection for PTSD is not warranted. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for PTSD is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs