Citation Nr: 1309549 Decision Date: 03/21/13 Archive Date: 04/01/13 DOCKET NO. 10-03 099 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for Hepatitis C with cirrhosis of the liver and esophageal varices. 2. Entitlement to service connection for headaches. 3. Entitlement to service connection for posttraumatic stress disorder (PTSD). 4. Entitlement to service connection for a psychiatric disability other than PTSD, to include mood and adjustment disorders and depression. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD T. Sherrard, Counsel INTRODUCTION The Veteran, who is the Appellant in this case, had active service from March 1973 to April 1975. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a January 2008 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). On his Form 9, the Veteran requested a hearing before the Board. Hearings were scheduled for August 9, 2011, and May 9, 2012, but the Veteran requested and was granted postponements in order to obtain additional evidence, including a statement from his doctor and blood work from the time of his discharge. Another hearing was scheduled for August 29, 2012, and, in advance of the hearing, the Veteran submitted yet another request for postponement because he requested proof from VA that a Hepatitis C test was conducted at the time of his service separation. His request for postponement was denied by the Veterans Law Judge who was to preside over his hearing in August 2012. Under 38 C.F.R. § 20.704(d), a hearing may be rescheduled if the Veteran's failure to appear was with good cause. The Board finds that the Veteran's failure to report for his hearing because he had not received the requested proof from VA that a specific blood test was taken at the time of his service separation does not satisfy the good cause requirement, and hereby denies the request for rescheduling. Therefore, this case will be processed as though the request for a hearing was withdrawn, and the Board can now proceed to appellate review. See 38 C.F.R. § 20.702(d). The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. The issue of entitlement to service connection for a psychiatric disability other than PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDINGS OF FACT 1. The Veteran did not sustain an injury or disease manifesting in Hepatitis C during active service, symptoms of Hepatitis C were not chronic in service, symptoms of Hepatitis C have not been continuous since service separation, and the Veteran's Hepatitis C is not related to his active service. 2. The Veteran did not incur a relevant injury or disease manifesting as headaches during active service, headaches were not chronic in service, and headaches have not been continuous since service separation. 3. The Veteran does not have a current diagnosis of PTSD. CONCLUSIONS OF LAW 1. The criteria for service connection for Hepatitis C with cirrhosis and esophageal varices have not been met. 38 U.S.C.A. §§ 101, 1101, 1110, 1112, 1113, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). 2. The criteria for service connection for headaches have not been met. 38 U.S.C.A. §§ 101, 1101, 1110, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). 3. The criteria for service connection for PTSD have not been met. 38 U.S.C.A. §§ 101, 1101, 1110, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 4.125(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition (such as cirrhosis) noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Unlike cirrhosis, the claimed headaches and PTSD at issue are not "chronic diseases" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.309(b) (requiring continuity of a condition after service if chronicity is not found in service) does not apply to those conditions. See Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). 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 C.F.R. § 3.303(d). Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases, such as cirrhosis of the liver, to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). Establishing service connection generally requires (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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Court has held that "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 a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Service connection for PTSD requires: medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (conforming to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (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). The applicable regulation requires that the in-service stressor or traumatic event involve actual or threatened death, serious injury, or a threat to the physical integrity of self or others and the person's response involve intense fear, helplessness, or horror. See DSM-IV § 309.81 (4th ed. 1994). If a claim for service connection for PTSD is based on allegations of in-service personal assault, evidence from sources other than a veteran's service records may corroborate a veteran's account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor and such evidence include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. 38 C.F.R. § 3.304(f)(5). The regulation specifically provides that VA will not deny a PTSD claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than a veteran's service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. 38 C.F.R. § 3.304(f)(5). In adjudicating a claim for service connection for PTSD, the evidence necessary to establish the incurrence of a stressor during service to support a claim of entitlement to service connection for PTSD will vary depending on whether or not the Veteran was "engaged in combat with the enemy." See Hayes v. Brown, 5 Vet. App. 60, 66 (1993). If it is determined through military citation or other supportive evidence that a veteran engaged in combat with the enemy, and the claimed stressors are related to combat, a veteran's lay testimony regarding the reported stressors must be accepted as conclusive evidence as to their actual occurrence and no further development or corroborative evidence will be necessary, provided that the testimony is found to be satisfactory, that is, not contradicted by service records, and "consistent with the circumstances, conditions, or hardships of such service." 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d),(f); Doran v. Brown, 6 Vet. App. 283, 289 (1994). To gain the benefit of a relaxed standard for proof of service incurrence of an injury or disease, 38 U.S.C.A. § 1154(b) requires that a veteran have actually participated in combat with the enemy. See VAOPGCPREC 12-99. If it is determined that a veteran did not engage in combat with the enemy, or the claimed stressor is not related to combat, a veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor. In such cases, the record must contain service records or other corroborative evidence which substantiates or verifies a veteran's testimony or statements as to the occurrence of the claimed stressors. See Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). Medically recognized risk factors for Hepatitis C include: (a) transfusion of blood or blood product before 1992; (b) organ transplant before 1992; (c) hemodialysis; (d) tattoos; (e) body piercing; (f) intravenous drug use (with the use of shared instruments); (g) high-risk sexual activity; (h) intranasal cocaine use (also with the use of shared instruments); (i) accidental exposure to blood products as a healthcare worker, combat medic, or corpsman by percutaneous (through the skin) exposure or on mucous membrane; and (j) other direct percutaneous exposure to blood, such as by acupuncture with non-sterile needles, or the sharing of toothbrushes or shaving razors. See VBA Training Letter 211A (01-02), dated April 17, 2001. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." See Layno, 6 Vet. App. at 469; 38 C.F.R. § 3.159(a)(2). The Court has emphasized that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of a veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by a veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service Connection for Hepatitis C The Veteran contends that he contracted Hepatitis C during active service. Specifically, he avers that he contracted the virus either via a blood transfusion during active service or during a fight in active service. After a review of all the evidence of record, lay and medical, the Board finds that the weight of the evidence demonstrates that no relevant injury or disease occurred during active service, and that the weight of the evidence demonstrates that symptoms of Hepatitis C, cirrhosis, or other liver problems were not chronic in service. Both the February 1973 enlistment and April 1975 separation examination reports are negative for Hepatitis C or findings of liver problems. In short, there are no complaints, symptoms, findings, history, diagnoses, or treatment of Hepatitis C or liver problems during active service. Regarding the Veteran's contentions as to how he contracted Hepatitis C, there is no documentation of a blood transfusion during active service. Moreover, although there is documentation of the Veteran being involved in at least one physical altercation in July 1974 during active service, there is no indication in his treatment records that there was a risk of infection with Hepatitis C as a result of that altercation. Specifically, his service treatment records show treatment for a fracture of the right infraorbital rim that healed with no residuals and did not require surgical correction. There is no indication of a blood test taken at the time of the altercation (or at any time during active service) out of concern of infection by someone else's blood or other bodily fluids. If there is no showing of a chronic condition (cirrhosis) during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). The Board next finds that the weight of the evidence demonstrates that symptoms of Hepatitis C or liver problems have not been continuous since separation from active service in April 1975. Following service separation in April 1975, the evidence of record does not show any complaints, diagnosis, or treatment for Hepatitis C or cirrhosis until 2002, when Social Security Administration (SSA) records indicate that the Veteran was awarded Social Security Disability (SSD) benefits on the basis of his diagnosis of chronic liver disease and cirrhosis. A September 2007 VA treatment record indicates the Veteran reported being diagnosed with Hepatitis C in 1993. In any case, the absence of post-service complaints, findings, diagnosis, or treatment for at least eighteen years after service separation until 1993 is one factor that tends to weigh against a finding of continuous symptoms of Hepatitis C or liver problems after service separation. See Buchanan, 451 F.3d 1336 (the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible). The Board also finds that the weight of the evidence demonstrates that cirrhosis of the liver did not manifest to a compensable degree within one year of service separation. The weight of the evidence demonstrates no diagnosis or findings of liver cirrhosis of any severity during the one year post-service presumptive period. See 38 C.F.R. § 4.114, Diagnostic Code 7312 (2012). The evidence shows the first assessment of cirrhosis 27 years after service separation in 2002. For these reasons, the Board finds that liver cirrhosis, first diagnosed in 2002, did not manifest to a compensable degree within one year of service separation; therefore, the presumptive provisions for liver cirrhosis are not applicable in this case. 38 C.F.R. §§ 3.307, 3.309. The Board notes that the Veteran's statement in September 2007 that he was first diagnosed with Hepatitis C in 1993 is strong evidence against his own claim of continuous infection with the virus since service separation. With regard to the Veteran's more recent assertions made as part of the current compensation claim that he has had Hepatitis C since separation from service in April 1975, the Board finds that, while the Veteran is competent to report the onset of Hepatitis C symptoms, his recent report of continuous Hepatitis C symptoms since service is outweighed by the other, more contemporaneous, lay and medical evidence of record, both in service and after service, and is not reliable. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). The Board finds that the Veteran's statements as to continuous Hepatitis C symptoms after service are not accurate because they are outweighed by other evidence of record that includes the more contemporaneous service treatment records which are negative for any complaints, findings or diagnoses of Hepatitis C or liver problems, the lack of any post-service documentation of treatment or diagnoses of Hepatitis C or a liver problem until 2002, and the Veteran's own statement that he was not diagnosed with Hepatitis C until 1993. The Board further finds that the weight of the evidence demonstrates that the Veteran's currently diagnosed Hepatitis C with cirrhosis is not related to his active service. First, there are no competent medical opinions establishing a nexus between the Veteran's Hepatitis C and any event during active service. Moreover, the Veteran's post-service treatment records reveal a history of intravenous drug use, which is one of the medically recognized risk factors for contracting Hepatitis C. Specifically, a December 2006 VA treatment note indicates that the Veteran reported substance abuse, including intravenous drug abuse, from 1973 to 1975. A September 2007 VA treatment note indicates the Veteran reported a history of substance abuse, including use of alcohol, cocaine, hallucinogenic, heroin, and marijuana, and that he had quit in 1986. Finally, service treatment records are negative for either the blood transfusion the Veteran avers he received during active service or blood contamination during the fight in 1974. For these reasons, the Board finds that the weight of the evidence is against a finding that the Veteran's Hepatitis C with cirrhosis and esophageal varices is related to active service. The Board has considered the Veteran's contentions that his Hepatitis C is related to an event in active service. The Board recognizes that lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson, 581 F.3d at 1316 (Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau, 492 F.3d 1372). However, in this case, the cause of the Veteran's Hepatitis C involves a complex medical etiological question because it deals with the origin and progression of an infectious disease, and disorder of such internal and complex disease process (liver disorder) is diagnosed primarily on clinical findings and physiological testing. As the record does not reflect that the Veteran possesses a recognized degree of medical knowledge, his assertions as to the existence, nature and etiology of the current diagnosis are not competent. While he is competent to relate symptoms of liver disease that he experienced at any time, he is not competent to opine on whether there is a link between the current Hepatitis C with cirrhosis and active service, because such diagnosis requires specific medical knowledge and training. See Rucker, 10 Vet. App. at 74 (stating that a lay person is not competent to diagnose or make a competent nexus opinion about a disorder as complex as cancer). In conclusion, after a careful review of the entire record, because the weight of the evidence is against a finding of an in-service injury or disease manifesting symptoms of Hepatitis C, chronic symptoms of Hepatitis C during active service, and a relationship between Hepatitis C and active service, the Board finds that the evidence weighs against the Veteran's claim of service connection for Hepatitis C with cirrhosis and esophageal varices. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Service Connection for Headaches In this case, the Veteran contends that his current headaches are related to active service. Specifically, he avers that his headaches are a residual of an assault that occurred during active service. After a review of all the evidence of record, lay and medical, the Board finds that the weight of the evidence demonstrates that no relevant injury or disease occurred during active service, and that headaches were not chronic in service. The Veteran's service treatment records, including his February 1973 enlistment and April 1975 separation examination reports, are silent as to any symptoms, complaints, history, treatment, or diagnosis of headaches. The Veteran did report a headache in July 1973 and again in November 1973, but on both occasions, the headache was associated with a myriad of other symptoms and he was diagnosed with strep throat. A July 1974 treatment note indicates the Veteran was beaten up, and he presented with a hematoma of the right orbit (later diagnosed as a fracture) with a large amount of edema in the right side of the face and mouth with complaints of generalized head pain. There is no indication in follow-up treatment notes, however, that the Veteran reported headaches following this incident. Therefore, the Board finds that the weight of the evidence demonstrates that no relevant disease or injury occurred during active service, and that headaches were not chronic in service. The Board next finds that the weight of the evidence demonstrates that headaches have not been continuous since separation from active service in April 1975. Following service separation in April 1975, the evidence of record does not show any complaints, diagnosis, or treatment for headaches until August 2007, when the Veteran filed his claim for service connection. A September 2007 VA treatment note indicates the Veteran reported occasional headaches. The absence of post-service complaints, findings, diagnosis, or treatment for headaches for more than thirty years after service separation until 2007 is one factor that tends to weigh against a finding of continuous headaches after service separation. See Buchanan, 451 F.3d 1336 (the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible). Additional evidence showing that headaches have not been continuous since service separation includes the Veteran's own statements at visits to the VA Medical Center in October 2006 and September 2007 during which he denied headaches. These statements are highly probative evidence against his own claim. With regard to the Veteran's more recent assertions made as part of the current compensation claim that he has had headaches since separation from service in April 1975, the Board finds that, while the Veteran is competent to report the onset of headaches, his recent report of continuous headaches since service is outweighed by the other, more contemporaneous, lay and medical evidence of record, both in service and after service, and is not reliable. See Charles, 16 Vet. App. at 374-75. The Board finds that the Veteran's statements as to continuous headaches after service are not accurate because they are outweighed by other evidence of record that includes the more contemporaneous service treatment records which are negative for any complaints, findings or diagnoses of headaches, and the lack of any post-service documentation of treatment or diagnoses of headaches until 2007, more than thirty years after service separation. Based on the evidence of record, the weight of the competent evidence demonstrates no relationship between the Veteran's current headaches and his military service, including no credible evidence of either a relevant in-service disease or injury, chronic symptoms of headaches during active service, or continuity of symptomatology of headaches, which would serve either as a nexus to service or as the factual basis for a favorable medical nexus opinion. Therefore, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against the claim for service connection for headaches, and outweighs the Veteran's more recent contentions regarding in-service chronic headaches and post-service headaches. For these reasons, the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Service Connection for PTSD The Veteran contends that he has PTSD as a result of events that occurred during active service. He has identified two primary stressors. First, he avers that in July or October of 1974, he became involved in a physical altercation between two Marines, and that he was hit in the head with a bottle. He stated he was very nervous, as there was a large crowd gathered around them, and that he was concerned for the safety of his friends. Second, he avers that he was walking through a village when he was beaten by three or four men of unknown identity. He stated he managed to get to the front gate (presumably of the base), but then passed out and awoke in a hospital. With regard to the first element necessary for a grant of service connection (medical evidence of PTSD), the Board finds that the weight of the evidence is against a finding that there is a current diagnosis of PTSD that complies with DSM-IV criteria. The first requirement for any service connection claim is competent evidence of existence of a current disability. Brammer, 3 Vet. App. at 225. The Veteran in this case has never been diagnosed with PTSD. VA treatment notes indicate the Veteran sought a referral to Salvation Army in August 2006, for which he apparently required a psychiatric clearance. He was seen by a VA physician, who noted that the Veteran denied any history of episodes of depression or delusion. After conducting a mental status examination, the VA physician assessed adjustment disorder, mixed, and cleared the Veteran to go to Salvation Army. In February 2007, the Veteran was evaluated by a VA psychologist. The Veteran reported difficulties with his lack of income and with family relationships. The psychologist assessed adjustment disorder with depressed features. In August 2007, the Veteran was seen by a VA psychiatrist when he was told that he would be getting a new therapist (he had been seeing a psychology intern for the past year for depression). When asked what his primary complaint was, he stated that he was not really sure. Notably, he denied any current active symptoms of PTSD, although he stated that "maybe I need to see someone for PTSD symptoms." The psychiatrist concluded that the Veteran presented with a vague psychiatric history, with vague neurovegetative symptoms of depression (versus sick syndrome) in the context of psychosocial stressors as well as chronic medical conditions. The VA psychiatrist evaluated the Veteran again nearly a week later. The Veteran did not discuss any military stressors, but, rather, problems with family relationships and his medical conditions. The psychiatrist assessed mood disorder, not otherwise specified, and rule out depression secondary to a general medical condition. She did not diagnose PTSD. There is no other documentation of a PTSD diagnosis made by a medical professional of record. Accordingly, in light of the lack of any documentation of a diagnosis of PTSD, the greater weight of the probative evidence is against finding that the Veteran has a current diagnosis of PTSD. As a result, the claim must be denied. Indeed, in the absence of proof of a present disability there can be no valid claim. Brammer, 3 Vet. App. at 225. The Board recognizes that the Court has held that the presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). However, where the overall record fails to support a current diagnosis of the claimed disability, as is the case here, that holding would not apply. The Board has considered the Veteran's statements regarding his symptoms, and acknowledges that the Veteran is competent to give evidence about what he experienced; for example, the Veteran is competent to discuss his depression, anxiety, and other experienced symptoms. See Layno, 6 Vet. App. 465. However, in the present case, although the Veteran's depression, anxiety, and other symptoms are found to be capable of lay observation, the diagnosis of PTSD is not within the province of a layperson, as such a diagnosis requires psychiatric testing and evaluation by a mental health professional, and thus his statements to the effect that he has a diagnosis of PTSD do not constitute competent evidence. In conclusion, after a careful review of the entire record, because the weight of the evidence is against a finding of a current diagnosis of PTSD, the Board finds that the evidence weighs against the Veteran's claim of service connection for PTSD. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102 , 3.156(a), 3.159, 3.326(a) (2012). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353 -356 (April 30, 2008). The Court issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The notice included provisions for disability ratings and for the effective date of the claim. In a timely November 2007 letter, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate a claim for service connection, what information and evidence must be submitted by the Veteran, and what information or evidence VA will attempt to obtain. The letter also described how VA determines disability ratings and effective dates. The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, post-service VA and private treatment records, and the Veteran's statements. The Veteran was afforded a VA examination with regard to the Hepatitis C claim in July 2007. In that regard, the Board acknowledges that the VA examiner did not provide a nexus opinion with regard to whether there is a relationship between the Hepatitis C and active service. Moreover, the Veteran was not afforded VA examinations or opinions with regard to the headache or PTSD claims. However, the Board finds that VA examinations or nexus opinions are not necessary in order to decide these issues. Two pivotal Court cases exist that address the need for a VA examination. Those are Duenas v. Principi, 18 Vet. App. 512 (2004) and McLendon v. Nicholson, 20 Vet. App. 79 (2006). In McLendon, the Court held that in disability compensation claims, the Secretary must provide a VA medical examination when there is: (1) competent evidence of a current disability or persistent or recurring symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on a claim. In Duenas, the Court held that a VA examination is necessary when the record: (1) contains competent evidence that the veteran has persistent or recurrent symptoms of the claimed disability, and (2) indicate that those symptoms may be associated with her active military service. In this case, the Veteran's service treatment records are negative for any complaints of or treatment for Hepatitis C or liver problems or headaches. Thus, the weight of the evidence demonstrates that the Veteran did not sustain an injury, disease, or event relating to Hepatitis C or headaches in service, and there is no duty to provide a VA medical examination. See Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010) (holding that that where the evidence has failed to establish an in-service injury, disease, or event, VA is not obligated to provide a medical examination). As explained in this decision, the Board also finds that the weight of the evidence demonstrates no chronic symptoms of Hepatitis C, liver problems, or headaches in service, no continuity of symptoms of Hepatitis C, liver problems, or headaches since service separation, and no current diagnosis of PTSD. Because there is no in-service injury or disease to which a competent medical opinion could relate the current disability (and, with regard to the PTSD claim, no currently diagnosed disability), there is no reasonable possibility that a VA nexus opinion could aid in substantiating the current claims for service connection for Hepatitis C, headaches, or PTSD. See 38 U.S.C.A. § 5103A(a)(2) (VA "is not required to provide assistance to a claimant . . . if no reasonable possibility exists that such assistance would aid in substantiating the claim"); 38 C.F.R. § 3.159(d) (VA to discontinue assistance where there is "no reasonable possibility that further assistance would substantiate the claim"). The Board has considered the decision in Charles, 16 Vet. App. at 374-75; however, in the absence of evidence of an in-service disease or injury, referral of this case to obtain an opinion as to the etiology of the Veteran's Hepatitis C or headaches would in essence place the examining physician in the role of a fact finder, would suggest reliance on an inaccurate history of occurrence of an in-service injury or disease, and could only result in a speculative opinion or purported opinion of no probative value. In other words, any medical opinion which purported to provide a nexus between the Veteran's Hepatitis C or headaches and military service would necessarily be based on an inaccurate history regarding what occurred in service, so would be of no probative value. The Court has held on a number of occasions that a medical opinion premised upon an unsubstantiated account of a claimant is of no probative value. See, e.g., Swann v. Brown, 5 Vet. App. 229, 233 (1993) (generally observing that a medical opinion premised upon an unsubstantiated account is of no probative value, and does not serve to verify the occurrences described); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (the Board is not bound to accept a physician's opinion when it is based exclusively on the recitations of a claimant that have been previously rejected). The holding in Charles was clearly predicated on the existence of evidence of an in-service injury, disease, or event and a current diagnosis. Referral of this case for an examination or to obtain a medical opinion would be a useless act. The duty to assist by providing a VA examination or opinion is not invoked in this case because there is no reasonable possibility that such assistance would aid in substantiating the claims. See 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d). Notably, the Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claims that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claims. 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). ORDER Service connection for Hepatitis C with cirrhosis and esophageal varices is denied. Service connection for headaches is denied. Service connection for PTSD is denied. REMAND The Board notes that the Veteran's post-service treatment records show diagnoses of mood disorder, adjustment disorder, and depression. In a precedent decision, Clemons v. Shinseki, 23 Vet. App. 1 (2009), the U.S. Court of Appeals for Veterans Claims (Court) held that the scope of a service connection claim for a mental disability is not restricted to the specific diagnosis alleged by the claimant, but includes any mental disability which may reasonably be encompassed by the claimant's description of the claim, the reported symptoms, and other information of record. Here, the Veteran has been diagnosed with mood and adjustment disorders and depression by his treatment providers, which has not been included in the RO's adjudications of the claim. Thus, to assure the Veteran full due process, because there are indications of a psychiatric diagnosis other than PTSD in the file, the Board concludes that this matter must be remanded for consideration of this claim pursuant to the Clemons precedent. The Board defers to the RO as to whether, on remand, a medical examination is required in order to reconcile the various diagnoses of record or obtain a nexus opinion. Accordingly, the issue of entitlement to service connection for a psychiatric disability other than PTSD is REMANDED for the following action: Adjudicate the Veteran's claim for service connection for a psychiatric disability other than PTSD, to include mood and adjustment disorders and depression, in light of the holding in Clemons v. Shinseki, supra. If any benefit sought is not granted, furnish the Veteran and his representative with a supplemental statement of the case and afford a reasonable opportunity to respond. Thereafter, return his claim to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ T. D. JONES Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs