Citation Nr: 1316765 Decision Date: 05/22/13 Archive Date: 05/31/13 DOCKET NO. 07-25 921 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a cervical spine disability. 2. Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. G. Mazzucchelli, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from March 1970 to April 1972, with a subsequent period of active duty for training in July and August 1973. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in April 2005 as amended by a rating decision in April 2007 by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In July 2009, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is in the claims file. This claim was previously before the Board in December 2009, when the claims were denied. The Veteran then appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court), which in November 2010, granted a Joint Motion for Remand of the parties (VA Secretary and the Veteran), and vacated the Board's decision and remanded the case pursuant to 38 U.S.C. § 7252(a) for readjudication consistent with the Motion. In April 2011, the Board remanded the case for additional development. The issue of entitlement to service connection for a cervical spine disability is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran did not engage in combat, posttraumatic stress disorder was not diagnosed in service, there is no credible evidence of fear of hostile military or terrorist activity, or credible evidence of a noncombat in-service stressor to support a diagnosis of posttraumatic stress disorder. CONCLUSION OF LAW The criteria for service connection for posttraumatic stress disorder have not been met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.304(f) (2012). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dings v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided pre-adjudication VCAA notice by letter, dated in April 2004. The Veteran was notified of the evidence needed to substantiate a claim of service connection, namely, evidence of current disability; evidence of an injury or disease in service or event in service, causing injury or disease; and evidence of a relationship between the current disability and the injury, disease, or event in service. The notice included a PTSD questionnaire to elicit information necessary to corroborate an alleged in-service stressor. Additionally, the Veteran was notified that VA would obtain VA records and records of other Federal agencies, and that he could submit other records not in the custody of a Federal agency, such as private medical records or with his authorization VA would obtain any such records on his behalf. The notice included the general provision for the effective date of a claim. As for content and timing of the VCAA notice, the document substantially complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112 (2004) (pre-adjudication notice); and of Dingess v. Nicholson, 19 Vet. App. 473 (notice of the elements of a claim, except for the degree of disability assignable). As for the omission of the degree of disability assignable, as the claim of service connection is denied, no disability rating can be assigned as a matter of law and therefore there is no possibility of any prejudice to the Veteran with respect to this limited VCAA content error. Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claims. The RO has obtained the service personnel and treatment records, VA records, and private medical records. The Veteran has not identified any additional pertinent records for the RO to obtain on his behalf. On the claim of service connection for posttraumatic stress disorder, there is no credible supporting evidence of an in- service stressor so that there is no possible association of the claimed disability and service. For this reason, VA is not required to provide a medical examination or to obtain a medical opinion under the duty to assist. 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). As there is no indication of the existence of additional evidence to substantiate the claim, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claims is required to comply with the duty to assist. REASONS AND BASES FOR FINDING AND CONCLUSION Principles of Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Service connection may also be granted for 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). Service connection for posttraumatic stress disorder requires medical evidence diagnosing the condition in accordance with § 4.125(a), that is, a diagnosis that conforms to the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). Unless posttraumatic stress disorder is diagnosed in service and the in-service stressor is related to service, or the in-service stressor is related to combat or to fear of hostile military or terrorist activity, or to a prisoner -of-war experience, or to a personal assault, the Veteran's lay testimony alone may not establish the occurrence of an alleged noncombat in-service stressor and the record must contain credible supporting evidence that the alleged noncombat in-service stressor actually occurred. 38 C.F.R. § 3.304(f); see Patton v. West, 12 Vet. App. 272, 280 (1999) (rejecting the requirement that medical nexus evidence is required for credible supporting evidence in a personal assault case). Evidentiary Standards VA must give due consideration to all pertinent medical and lay evidence in a case where a Veteran is seeking service connection. 38 U.S.C.A. § 1154(a). As the Veteran was not in combat, the combat provisions of 38 U.S.C.A. § 1154(b) do not apply. Competency is a legal concept in determining whether medical or lay evidence may be considered, in other words, whether the evidence is admissible as distinguished from weight and credibility, a factual determination going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. The Board, as fact finder, must determine the probative value or weight of the admissible evidence. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). When there is an approximate balance of positive and negative admissible evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). Evidence The service treatment records contain no complaint, finding, history, treatment, or diagnosis of posttraumatic stress disorder. After service in December 2003, during a mental health intake at a VA Medical Center, the Veteran reported difficulty sleeping, nightmares, increased irritability, and decreased interest in socialization for the past 3 months. He reported that he was in the military from 1970 to 1972 and was one of only a few men from his company not deployed to Vietnam. He stated that he had lost a son in a violent street crime and was interested in joining a support group. He also expressed interest in treatment for stress and anger management, individual counseling, and posttraumatic stress disorder group treatment. The diagnosis was major depression, recurrent. From December 2003 through June 2004, the Veteran received individual counseling focusing on anger management and effective coping and problems solving strategies, as well as some sessions of marital counseling with his wife. In a written statement received by the RO in June 2004, the Veteran listed two stressors related to posttraumatic stress disorder. The first was intimidation during basic training at Fort Dix as he was yelled at by Drill Instructors and told he would be killed in Vietnam. The second was additional intimidation and threats of being killed in Vietnam while he was stationed at Fort Polk, and attacking another soldier and being sent to a military psychiatrist. In March 2005, the Veteran attended a posttraumatic stress disorder education group at the VA Medical Center and participated in discussions of life skills management and handling environmental triggers and interpersonal stress. The therapist provided a diagnosis of posttraumatic stress disorder. In June 2007, the Veteran was seen for mental health and medication management at the VA Medical Center. The diagnosis was posttraumatic stress disorder. In June 2007, in the statement of the case, the Veteran was on notice that the alleged stressors he identified were not the kind that were verifiable. In July 2009, the Veteran testified that he has posttraumatic stress disorder due to his fear of being deployed to Vietnam when he first joined the military at 17. He said he had been referred to the mental health clinic for a while in basic training after attacking a fellow soldier, but only attended one session because of fear of being teased. He testified that the VA Medical Center diagnosed posttraumatic stress disorder based on such symptoms as isolating himself from people, dreams of being chased by people who are trying to kill him, and hypervigilance. On a VA psychiatric examination in August 2010, the diagnosis was mood disorder due to general medical condition. Service connection for mood disorder has been granted. Analysis On the basis of the service treatment records, posttraumatic stress disorder was not affirmatively shown during service and service connection under 38 U.S.C.A. § 1110 and 38 C.F.R. § 3.303(a) is not established. The Veteran does not argue and the record does not show that the alleged in-service stressors were related to combat. Whereas here the alleged in-service stressors are not combat related, the alleged in-service stressors must be corroborated by credible supporting evidence. Cohen v. Brown, 19 Vet. App. 128, 141 (1997) § 3.304(f)). The Veteran did not serve in combat and he was stationed in Europe or the United States for his entire period of service. Although the Veteran expressed fear of being sent to Vietnam, there is no evidence of fear of hostile military activity under 38 C.F.R. § 3.304(f)(3), that is, actual or threatened death or serious injury or threat to one's physical integrity in the United States or Europe. The personal assault described by the Veteran occurred in basic training before September 1970. And the service personnel records do not document the assault. Moreover, 38 C.F.R. § 3.304(f) generally applies to a victim of an assault not to the perpetrator of an assault, which would raise questions of whether the incident was one of willful misconduct and not in the line of duty. The service personnel records do show that in February 1971 in Germany the Veteran received non-judicial punishment for violating an off-limits order. In the absence of a diagnosis of posttraumatic stress disorder in service, or an in-service stressor related to combat or to fear of hostile military or terrorist activity, or to a prisoner -of-war experience, or to a personal assault, the Veteran's lay testimony alone may not establish the occurrence of an alleged noncombat in-service stressor and the record must contain credible supporting evidence that the alleged noncombat in-service stressor actually occurred. 38 C.F.R. § 3.304(f); see Patton v. West, 12 Vet. App. 272, 280 (1999) (rejecting the requirement that medical nexus evidence is required for credible supporting evidence in a personal assault case). The only evidence of the in-service stressors are the Veteran's statements and testimony and the Veteran's lay testimony alone is insufficient proof of a stressor. In the absence of credible supporting evidence of the alleged in-service stressors, there is no possible association with service, and VA is not required to further develop the claim by affording the Veteran a VA examination or by obtaining a VA medical opinion under the duty to assist. 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). To the extent that the Veteran asserts that he has posttraumatic stress disorder, posttraumatic stress disorder is not a condition under case law where lay observation has been found to be competent to establish a diagnosis and the determination as to the presence of the disorder therefore is medical in nature, that is, not capable of lay observation. Also by regulation the diagnosis of posttraumatic stress disorder requires medical evidence diagnosing the condition in accordance 38 C.F.R. § 4.125, that is, a diagnosis that conforms to the Diagnostic and Statistical Manual of Mental Disorders (DSM- IV). 38 C.F.R. § 3.304(f). Under certain circumstances, lay evidence can be competent to establish a diagnosis of a simple medical condition. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (noting that lay evidence can be competent and sufficient to establish a diagnosis of a condition when a layperson is competent to identify the medical condition (noting, in a footnote, that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer)). As previously explained, by regulation the diagnosis of posttraumatic stress disorder requires medical evidence diagnosing the condition in accordance 38 C.F.R. § 4.125, that is, a diagnosis that conforms to the Diagnostic and Statistical Manual of Mental Disorders (DSM- IV). 38 C.F.R. § 3.304(f). For this reason, posttraumatic stress disorder is not a simple medical condition that the Veteran as a lay person is competent to identify. Whereas here the diagnosis of posttraumatic stress disorder involves a medical diagnosis, not capable of lay observation, and posttraumatic stress disorder is not a simple medical condition, competent medical evidence is required to substantiate the claim. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis or medical opinion. 38 C.F.R. § 3.159. As a lay person, the Veteran is not qualified, that is, he is not competent, through specialized education, training, or experience to offer a medical diagnosis of posttraumatic stress disorder. Because the Veteran's statements are not competent evidence, the statements are excluded, that is, not admissible, as evidence that the Veteran has posttraumatic stress disorder. Although the Veteran as a lay person is competent to report a contemporaneous medical diagnosis or to describe symptoms, which supports a later diagnosis by a medical professional, Jandreau at 1377, the diagnosis of posttraumatic stress disorder by health-care professionals in this case does not constitute credible evidence of an in-service stressor because evidence of noncombat in-service stressor cannot consist solely of after-the-fact medical nexus evidence in the absence of a diagnosis of posttraumatic stress disorder in service, or an in-service stressor related to combat or to fear of hostile military or terrorist activity, or to a prisoner -of-war experience, or to a personal assault. Moreau v. Brown, 9 Vet. App. 389, 395-96 (1996). As for the lay statements of the Veteran's sister and two friends, whom the Veteran has known before service, the lay witnesses are competent to describe symptoms of changes in the Veteran's behavior after service. It is not argued or shown that the lay witnesses are qualified through specialized education, training, or experience to relate the changes in the Veteran's behavior after service to posttraumatic stress disorder and statements are not competent evidence. In the absence of competent medical evidence of a diagnosis of posttraumatic stress disorder based on credible supporting evidence of a noncombat in-service stressor, there is no valid claim for service connection. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303 , 3.304(f); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As there is no competent evidence to support the claim of service connection, considering all the evidence, including the lay and medical evidence, the Veteran has not met the evidentiary burden to establish all elements of his claim, and the benefit-of-the-doubt standard of proof does not apply as there is no approximate balance of positive and negative evidence. 38 U.S.C.A. § 5107(b). ORDER Service connection for posttraumatic stress disorder is denied. REMAND Pursuant to the Joint Motion, the Board directed that VA records from the Columbia, South Carolina, VAMC be obtained. As noted by the Veteran in a May 2011, the records request was sent to Columbia, Missouri. Given the specific instructions in the Joint Motion, VA is compelled to request the records from the Columbia, South Carolina, VAMC. Accordingly, the case is REMANDED for the following action: 1. Request the records since 1973 from the Columbia, South Carolina, VA Medical Center. If the records do not exist or future efforts to obtain the records would be futile, notify the Veteran and his representative in accordance with the provisions of 38 C.F.R. § 3.159(e). 2. On completion of the foregoing, adjudicate the claim of service connection for a cervical spine disability. If the benefit sought is denied, then furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The 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. 2010). ______________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs