Citation Nr: 1308450 Decision Date: 03/13/13 Archive Date: 03/20/13 DOCKET NO. 09-26 769 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Hinton, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran served on active duty from April 1969 to November 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana, which denied the benefit sought. Claims for service connection for psychiatric disabilities, including PTSD, may encompass claims for service connection for all diagnosed psychiatric disabilities. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Accordingly, the Board has recharacterized the issue on appeal. FINDINGS OF FACT 1. The Veteran did not engage in combat with the enemy; and there is no credible supporting evidence that the claimed in-service stressors occurred, and no diagnosis of PTSD that is based on non-combat stressors corroborated by credible supporting evidence. 3. There are post-service diagnoses of anxiety disorder, not otherwise specified, panic disorder with agoraphobia, dysthymic disorder, and personality disorder, not otherwise specified with schizoid avoidant and negativistic traits. 4. Service treatment records do not reveal any treatment or diagnosis of any psychiatric disability during active service. 5. The earliest evidence of any psychiatric disability is in 2006. 6. There is no credible evidence linking any current psychiatric disability to service. CONCLUSION OF LAW The criteria for service connection for a psychiatric disorder, to include PTSD, have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2012). The Veterans Claims Assistance Act of 2000 (VCAA) On receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. Letters dated in July and September 2007, and February 2008 satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). These letters also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was informed of the need to show the impact of disabilities on daily life and occupational functioning. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd in part sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claim was subsequently readjudicated, most recently in a June 2009 statement of the case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. 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). The Veteran's service treatment and personnel records, and VA medical treatment records, have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c) (2). VA has not afforded the Veteran an examination to obtain an opinion as to a psychiatric disability to include PTSD. However, there is no evidence establishing that an event, injury, or disease occurred in service associated with any psychiatric disability to include PTSD; there is no evidentiary indication that the claimed disability or symptoms may be associated with the Veteran's service; and there is no competent evidence of a continuity of symptomatology since service. An examination or medical opinion is not needed because the only evidence indicating that the claimed disability may be associated with service is the Veteran's own lay statements. These are insufficient to trigger VA's duty to provide an examination because he has not asserted that he has had these conditions since service and he is not competent to opine as to the onset or etiology of the claimed current disabilities. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the 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; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Applicable Law In general, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304. Service connection generally requires credible and competent evidence showing: (1) the existence of a present disability; (2) 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. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet .App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). 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). Entitlement to service connection on the basis of a continuity of symptomatology after discharge under 38 C.F.R. § 3.303(b) is only available for the specific chronic diseases, including psychoses, listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, No. 2011-7184, 2013 WL 628429 (Fed.Cir. Feb. 21, 2013). Psychoses may be presumed to have been incurred during active military service if they become manifest to a degree of 10 percent within the first year following active service. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Personality disorders are not diseases or injuries under VA regulations and therefore are not disabilities for which service connection can be granted. 38 C.F.R. § 3.303(c). However, service connection may be granted if the evidence shows that an acquired psychiatric disorder was incurred or aggravated in service and superimposed upon the preexisting personality disorder. 38 C.F.R. §§ 4.9; 4.125(a), 4.127 (2012). 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). Establishing service connection for PTSD requires that there be (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; (3) and credible supporting evidence that the claimed in-service stressor actually occurred. 38 C.F.R. § 3.304(f); see also Cohen v. Brown, 10 Vet. App. 128, 138 (1997). The diagnosis of a mental disorder must conform to the Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV) and be supported by the findings of a medical examiner. See 38 C.F.R. § 4.125(a) (2012). If the evidence establishes that the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, 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. See 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2011) (pertaining to combat veterans). However, if, a veteran did not engage in combat, his 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 requirement 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 (1996). Additionally, if a stressor claimed by a veteran is related to the Veteran's "fear of hostile military or terrorist activity" and a VA or VA-contracted psychiatrist or psychologist confirms that the claimed stressor is adequate to support a diagnosis of PTSD, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor so long as there is not 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. 38 C.F.R. § 3.304(f)(3) (2012). For purposes of this section, "fear of hostile military or terrorist activity" means that "a 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, . . . , and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror." Id. A significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (holding presumption of service connection for colon disability to be rebutted by clear and convincing evidence in the form of absence of post-war medical records of treatment for colon-related problems for period of over 40 years). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can be competent and sufficient evidence of a diagnosis or used to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). II. Factual Background and Analysis The Veteran claims entitlement to service connection for PTSD on the basis that he has PTSD resulting from inservice stressor incidents during service in Vietnam, including the following reported stressors contained in statements on file. He reported that in the approximate period of January to March 1970, rocket fire hit the jeep in which one of his friends was riding on the way into base camp. His friend and another soldier were killed and blown to pieces with nothing left. He had to salvage the jeep and witnessed the remains. In one statement, the Veteran reported that in about May or June 1970, a soldier living next door named Williams shot himself. In another document the Veteran appears to identify the same incident involving a man named Vernon Davis who shot himself after receiving a "Dear John" letter in 1970. The Veteran also indicated he did not remember the person's name. Most recently, in a March 2008 statement, the Veteran identified the suicide victim as SP4 Robinson. The Veteran reported that in about May or June 1970, after he received a "Dear John" letter from home, Robinson shot himself soon after they had spoken with each other. This occurred at Long Bin at Duster Compound, 2nd Field Force. The Veteran also reported that while in Vietnam he was assigned for 14 months to Battery I, 29th Artillery, and during one ground attack, he was shot at while at Da Nang checking the service of their vehicles. In the Veteran's substantive appeal, VA Form 9, filed in July 2009, he reported his stressors included seeing close friends getting killed or maimed by Viet Cong soldiers, and seeing bodies stacked like cord wood along the side of the road. The Veteran's service personnel records show that he served in Vietnam (USARPAC for one year and almost two months (enroute to USARV effective August 15, 1969, and enroute to CONUS effective October 30, 1970)); and his military specialty was listed as wheel mechanic. His principal duties in Vietnam included power generator operator, mechanic helper, wheel vehicle repairman, and equipment report clerk. In Vietnam he was assigned to Battery I, 2nd Battalion, 29th Artillery. Service records show no awards or other indications of any direct involvement in a combat role. Service treatment records do not show any complaints or treatment or any clear indications otherwise of any psychiatric condition, or physical injury that the Veteran has attributed to his claimed PTSD. VA treatment records show that the Veteran began receiving treatment in March 2006, as reflected in an August 2007 Assessment report of treatment at the Vet Center. VA treatment records beginning in April 2006 show psychiatric treatment for symptoms diagnosed to include on Axis I, (1) anxiety disorder, not otherwise specified; (2) panic disorder with agoraphobia; and (3) dysthymic disorder; and on Axis II, personality disorder, not otherwise specified with schizoid, avoidant, and negativistic traits. A May 2006 VA psychiatric treatment report includes on Axis I, notation of "test results compatible with PTSD, but independent corroboration is needed before a diagnosis of PTSD is tenable." An April 2009 VA psychology outpatient note shows that the Veteran reported stressors, that SP-4 Robinson shot himself after receiving a "Dear John" letter after the Veteran had left the room. He also reported seeing dead bodies just about every time he went out into the field to check vehicles. The note contains an assessment on Axis I, of (1) anxiety disorder, not otherwise specified; (2) 2006 test results compatible with PTSD, but independent corroboration is needed before a formal diagnosis of PTSD is tenable; (3) panic disorder with agoraphobia; and (4) dysthymic disorder. There is no competent evidence on file of a claimed stressor related to the Veteran's fear of hostile military or terrorist activity that resulted in a response of a psychological or psycho-physiological state of fear, helplessness, or horror. See 38 C.F.R. § 3.304(f)(3). Further, the Veteran is not shown to have engaged in combat. Accordingly, credible supporting evidence showing that his claimed noncombat in-service stressors actually occurred is required for him to prevail. See Cohen v. Brown, 10 Vet. App. 128, (1997); Moreau, 9 Vet. App. at 394-95; Doran v. Brown, 6 Vet. App. 283, 290 (1994). Under such circumstances, the Veteran's lay testimony regarding the stressor is insufficient, standing alone, to establish service connection. See Moreau, 9 Vet. App. at 395; Doran, supra. VA treatment records include diagnoses on Axis I including anxiety disorder, not otherwise specified; panic disorder with agoraphobia; and dysthymic disorder. The VA treatment records include PTSD in problem lists, however, these records do not contain an Axis I diagnosis of PTSD. Some VA treatment records note on Axis I only that test results were compatible with PTSD, but independent corroboration is needed before a diagnosis of PTSD is tenable. The record does not contain a definitive diagnosis of PTSD. After considerable efforts at development, there is no credible supporting evidence that the alleged stressors occurred. An October 2007 memorandum from the Joint Service Records Research Center (JSRRC) Coordinator shows that it was determined that there was insufficient evidence to corroborate stressors associated with the claim for service connection for PTSD. The Coordinator reported on efforts to obtain information necessary to corroborate stressful events for the claim, and noted in part that the Veteran's 201 file and DD214 were negative for combat stressors; and that the Veteran provided insufficient evidence for a search otherwise. In a letter dated in February 2008 addressed to the Veteran, the RO requested the Veteran provide specific information as to the name of the suicide victim the Veteran identified variously as Vernon Davis, Robinson, or Williams. The RO further asked the Veteran more generally to provide specific details of his reported stressful incidents in service that resulted in PTSD, including a description of the specific events and details for each individual event. There is no indication that the Veteran provided any further details beyond that discussed above. The claims file contains results of a search of Army casualty records for casualties named "Robinson" during the relevant period, which showed none involving a suicide. Despite these efforts, there is no credible supporting evidence that any alleged stressor occurred. With respect to diagnoses of other acquired psychiatric disabilities, specifically anxiety disorder not otherwise specified, panic disorder with agoraphobia, and dysthymic disorder, there is no credible evidence linking any diagnosed psychiatric disability to service. The evidence of record establishes the onset of psychiatric symptoms in 2006, over 35 years after the Veteran separated from active duty service. With respect to any diagnosed personality disorder, there is no evidence to show that an acquired psychiatric disorder was incurred or aggravated in service and superimposed upon a preexisting personality disorder. 38 C.F.R. §§ 4.9; 4.125(a), 4.127 (2012). With respect to schizoid traits associated with the diagnosis of a personality disorder, there is no evidence that a chronic condition was incurred or aggravated in service and superimposed upon a preexisting personality disorder; there is no evidence that any psychosis either manifested to a degree of 10 percent within the first year following active service; and there is no evidence of a continuity of symptomatology after discharge, so as to warrant service connection. The preponderance of the evidence is against the claim for service connection for a psychiatric disorder, to include PTSD; there is no doubt to be resolved; and service connection is not warranted. ORDER Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs