Citation Nr: 1301906 Decision Date: 01/17/13 Archive Date: 01/23/13 DOCKET NO. 09-32 040 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). ATTORNEY FOR THE BOARD A. Haddock, Associate Counsel INTRODUCTION The Veteran served on active duty from October 2001 to February 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Philadelphia, Pennsylvania Department of Veterans Affairs (VA) Regional Office (RO). The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. The issues of entitlement to service connection for a finger disability and entitlement to increased ratings for a service-connected back disability and a service-connected right knee disability have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDING OF FACT The Veteran has not had PTSD at any time during the period of this claim. CONCLUSION OF LAW PTSD was not incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. 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 After reviewing the claims folders, the Board finds that the Veteran has been notified of the applicable laws and regulations which set forth the necessary criteria for the benefits currently sought. The Veteran was informed of the information and evidence necessary to warrant entitlement to the benefits sought in an April 2008 letter. Moreover, in the April 2008 letter, the Veteran was 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 Board notes that this letter was sent to the appellant prior to the June 2008 rating decision currently on appeal. The VCAA notice was therefore timely. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). 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 Veteran was provided with notice of what type of information and evidence was needed to substantiate the claim for service connection. Further, the April 2008 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 claim, 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 VA has obtained service and post service treatment records; assisted the Veteran in obtaining evidence; and afforded the Veteran a VA examination in May 2008. All known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time II. Legal Criteria and Analysis Applicable law provides that Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). The U.S. Court of Appeals for Veterans Claims (Court) has held that in order to prevail on the issue of service connection on the merits, there must be medical evidence of a (1) 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 present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). Generally, service connection for PTSD based on an in-service stressor requires medical evidence establishing a diagnosis of the condition, credible supporting evidence that the claimed in-service stressor actually occurred, and a link established by medical evidence, between the current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304 (f). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests a psychosis to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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 claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Veteran contends that he has PTSD as a result of his active service, to specifically include his time spent working in a base hospital in the obstetrics unit. A review of the Veteran's service treatment records (STRs) show that he received treatment for various mental health disabilities while in service. A November 2006 STR shows that the Veteran completed a PTSD checklist and that he was given a diagnosis of PTSD. A December 2006 STR shows that the Veteran was evaluated at the base outpatient psychiatric clinic. Following an interview with the Veteran and a mental status examination, the treating psychiatrist found that there was no evidence to suggest PTSD, but rather found the evidence and symptoms reported by the Veteran supported a diagnosis of adjustment disorder, unspecified, with narcissistic traits, rule out personality disorder. On his December 2007 separation examination the Veteran reported nervous trouble, trouble sleeping, depression or excessive worry, and that he had received counseling and been evaluated or treated for a mental health condition. The Veteran's psychiatric clinical evaluation was noted to be normal. The Veteran was afforded a VA examination in connection with a claim of entitlement to service connection for attention deficit hyperactivity disorder (ADHD) in April 2008. The examiner noted the Veteran's history of psychiatric treatment, including his in-service mental health treatment, and that a January 2008 STR noted a diagnosis of specific phobia with obsessive compulsive traits. After examination, the April 2008 examiner noted that the Veteran appeared to meet the DSM-IV criteria for specific phobia. The examiner further noted that the symptoms reported by the Veteran were not attributable to PTSD as he did not report a preoccupation with avoidance rituals or suppression of thoughts, nor did he describe specific exposure to a traumatic stimulus with an extreme emotional reaction causing efforts at avoidance. The examiner's final diagnosis was ADHD, primarily inattentive type; specific phobia, with obsessive-compulsive features; personality disorder, not otherwise specified. On May 2008 VA examination in connection with his claim of entitlement to service connection for PTSD, the Veteran reported symptoms of psychiatric distress related to his occupational environment while on active service. After interview of the Veteran and review of the claims files, including the Veteran STRs, the examiner opined that the Veteran did not meet the criteria for a diagnosis of PTSD under the DSM-IV. The examiner explained, that while the Veteran exhibited some symptoms that are characteristic of PTSD, he does not meet the full criterion for a persistent avoidance of stimuli associated with the reported in-service stressor. The examiner noted that while the Veteran's experiences in active service were difficult and traumatic for him, rather than developing PTSD, he developed an obsessive compulsive behavior pattern. The examiner's final diagnosis was specific phobia, with obsessive compulsive features and ADHD. VA treatment records from November 2008 through May 2010 show the Veteran receives regular psychiatric treatment for an adjustment disorder with ADHD. Furthermore, the Board notes that the June 2008 rating decision granted the Veteran service connection for attention deficit disorder (ADD) with obsessive compulsive features (claimed as anxiety disorder, depression), and assigned a 10 percent disability rating effective February 23, 2008. The threshold requirement that must be met in order to establish a claim for service connection is that there must be competent evidence of a current disability or one that existed on or after the date of application for service connection. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In the absence of proof of a present disability, there can be no valid claim for service connection. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In the instant case, there is no evidence that the Veteran has a current diagnosis of PTSD. In sum, while the Veteran's STRs show that he was given a diagnosis of PTSD in November 2006, a subsequent STR in December 2006 noted that he did not meet the criteria for a PTSD diagnosis. On April 2008 and May 2008 VA examination, the Veteran was found to exhibit some PTSD-like symptoms; however, it was determined that his symptoms were more likely attributable to diagnoses of ADHD and specific phobia with obsessive compulsive features. As there is no competent evidence that the Veteran has, or at any time during the pendency of the claim has had, a diagnosis of PTSD, he has not presented a valid claim for service connection for such disability, and the appeal in the matter must be denied. ORDER Service connection for PTSD is denied. ____________________________________________ M.W. GREENSTREET Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs