Citation Nr: 1318436 Decision Date: 06/06/13 Archive Date: 06/11/13 DOCKET NO. 11-25 613 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD April Maddox, Counsel INTRODUCTION The Veteran served on active duty from December 1942 to September 1945. This appeal to the Board of Veterans' Appeals (Board) arose from an August 2010 rating decision in which the RO, inter alia, denied the Veteran's claim for service connection for PTSD. In October 2010, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in August 2011, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in September 2011. As regards characterization of the appeal, the Board notes that SOC also included other issues denied in the August 2010 rating action-the matters of entitlement to a rating in excess of 10 percent for a left hand scar with weakness of grip, and entitlement to an increased, compensable rating for residuals of left hand injury. However, in his September 2011 substantive appeal, the Veteran expressly limited his appeal to the PTSD issue, and did not-through any document filed by him or his representative-thereafter timely perfect an appeal as to the higher rating claims. Hence, the only matter before the Board is that set forth on the title page. As such, although the Veteran's representative listed (but did not argue) the higher rating claims in January and April 2013 submissions, and the RO listed the higher ratings claim in certifying the appeal, these listings were in error. In May 2013, a Deputy Vice Chairman advanced this appeal on the Board's docket, 38 U.S.C.A. § 7107(a)(2) (West 2002) and 38 C.F.R. § 20.900(c) (2012). The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. As a final preliminary matter, the Board notes that, in a September 2009 VA psychiatric examination report, a VA examiner commented that a nexus between the Veteran's claimed war experiences and his in-service psychiatric hospitalization might be reasonably assumed. Such statement appears to raise a question as to service connection for psychiatric disability other than PTSD-a matter which (as noted below) has been previously adjudicated and denied (most recently, by the Board in 1970). However, as the matter of a request to reopen the previously denied claim has not been adjudicated by the Agency of Original Jurisdiction (AOJ)-here, the RO-the Board does not have jurisdiction over the matter, and it is referred to the RO for appropriate action. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim on appeal have been accomplished. 2. VA has conceded the occurrence of the Veteran's claimed in-service stressor of severely injuring his left hand. 3. Although medical evidence indicates that the Veteran has displayed some PTSD symptoms, competent, probative evidence does not establish that the Veteran actually meets the diagnostic criteria for PTSD. CONCLUSION OF LAW The criteria for service connection for PTSD are not met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353 -23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO, to include the AMC). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, in an October 2009 pre-rating letter, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate the underlying claim for service connection for PTSD, what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA and specifically advised the Veteran of evidence needed for stressor verification purposes. The October 2009 letter also provided the Veteran with general information pertaining to VA's assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The August 2010 RO rating decision reflects the initial adjudication of the claim after issuance of the October 2009 letter. Therefore, the October 2009 letter meets the content of notice requirements of Pelegrini and Dingess/Hartman as well as the VCAA's content of notice requirement. Because notice pertinent to the request to reopen encompassed what was needed to support the underlying claim for service connection, no additional notice was required after the claim was reopened. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter on appeal. Pertinent medical evidence associated with the claims file consists of private and VA treatment records as well as a September 2009 VA psychiatric examination report. Also of record and considered in connection with the appeal are the various written statements from the Veteran, his wife and daughter, as well as from his representative, on his behalf.. The Board also finds that no additional RO action to further develop the record in connection with the claim for service connection for PTSD, prior to appellate consideration, is required. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO/AMC, the Veteran has been notified and made aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter on appeal, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 539, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Such a determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Service connection may be granted for any disease diagnosed after discharge from service 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 PTSD requires a medical diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f) . The evidence needed to establish the occurrence of a claimed in-service stressor is typically dependent upon whether the Veteran engaged in combat with the enemy, as well as whether the claimed in-service stressor is related to such combat; or, if not, whether there objective evidence to verify the occurrence of the claimed stressor. See 38 C.F.R. § 3.304(f); Cohen v. Brown, 10 Vet. App. 128, 147 (1997); Moreau v. Brown, 9 Vet. App. 389, 395 (1996); see also 38 U.S.C.A. 1154(b) (West 2002). On July 13, 2010, VA published a final rule that amended its adjudication regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the occurrence of the required in-service stressor. See 75 Fed. Reg. 39843 (July 13, 2010), and 75 Fed. Reg. 41092 (July 15, 2010) (correcting the effective and applicability dates from July 12, 2010 to July 13, 2010). The revisions apply to, among others, claims appealed before July 13, 2010, but not yet decided by the Board. The Veteran has advanced several theories of entitlement to service connection for PTSD, to include that his PTSD is the result of in-service mustard gas exposure, and that he has PTSD as a result of sustaining a significant wound to his left hand during service. While service treatment records confirm that the Veteran did, in fact, sustain a significant wound to his left hand during service-an in-service stressor that the RO has conceded-as explained below, the claim must nonetheless be denied because the Veteran has not met the first essential criterion for service connection for PTSD-medical diagnosis of the disorder in accordance with the applicable diagnostic criteria. The report of the Veteran's September 1942 enlistment examination shows a normal mental system. In June 1944m he severely injured his left hand and was hospitalized for several months. Thereafter, in April 1945 he was treated for psychoneurosis, hysteria, moderate, manifested by apparent inability to use left hand, following injury when hand was pinned against building by board. Another April 1945 service treatment record noted psychoneurosis, mixed type, severe, manifested by insomnia, loss of weight, nervousness and hysterical palsy of left hand following accident to hand in June 1944. Later in April 1945, it was noted that the Veteran's left hand disorder had long healed but that he continuously complained of pain to the point where he appeared to have a mental illness. He was recommended for separation from service. In May 1945, the Veteran he was diagnosed with mental deficiency, moron. Another May 1945 record shows an impression of conversion hysteria in a mental deficient (moron level) and he was given a 30-day furlough. A July 1945 service treatment record notes a diagnosis of mental deficiency, moron level, mental age 9 years, manifested by poverty of ideas, poor judgment, inability to grasp the significance of ordinary situations, production of somatic complaints as compensation for his general inadequacy, inaptness for military service. He was discharged from service in September 1945 due to his mental problems. Immediately after service, the RO issued a rating decision in December 1945 which denied service connection for "mental deficiency, moron," noting that this was a congenital disorder. In May 1968 the Veteran filed a claim for service connection for a psychiatric disorder. In connection with this claim the Veteran submitted VA treatment records showing that he was hospitalized for psychiatric problems beginning in May 1968 and ultimately diagnosed with schizophrenia, paranoid type. He also submitted a statement from Dr. H.S.R. who indicated that he first treated the Veteran in 1960 for psychiatric problems. The RO denied service connection for schizophrenia in August 1968 and the Board confirmed the denial in May 1970. VA treatment records show that the Veteran experienced a cerebral vascular accident in June 2008. He was hospitalized for approximately one month and, at that time, he was diagnosed with dementia. A depression screening was done as well which found no evidence of clinical depression, however, it was noted that, due to the dementia, results of the screening may not be accurate. The Veteran filed the current claim for PTSD in June 2009. He was afforded a VA psychiatric examination in September 2009. The examiner attempted to determine whether the Veteran had a diagnosis of PTSD but was unsuccessful because the Veteran had dementia and the examiner was unable to get an adequate assessment. The examiner noted that the records revealed that the Veteran was hospitalized during service in 1945 for psychiatric conditions which seem related to combat. The Veteran's daughter summarized an account of the Veteran's war experiences. The examiner opined that a nexus between the Veteran's claimed war experiences and the Veteran's hospitalization might be reasonably assumed, the symptom complex required for formal and chronic diagnosis of PTSD simply could not be assessed. By rating decision dated in August 2010, the RO denied service connection for PTSD. Subsequent VA treatment records dated through August 2011 also show impressions of dementia. Significantly, a June 2011 VA psychiatric treatment record shows Axis I diagnoses of vascular dementia and Alzheimer's dementia and indicates that an Axis II diagnosis was deferred. A July 2011 VA treatment record shows problems with dementia and occasional agitation/hyper arousal with a history of combat experience in World War II; R/O (rule out) PTSD. Diagnoses of PTSD must be rendered in accordance with the diagnostic criteria for the condition set forth in the Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). See 38 C.F.R. § 4.125 (noting that VA has adopted the nomenclature of the DSM-IV). While, as indicated above, a single, July 2011 VA treatment record shows an impression of R/O PTSD, the remaining VA treatment records document clear diagnoses of dementia only. Moreover, the September 2009 VA examiner's determination-following review of the claims file, and a limited interview with the Veteran and his spouse-that he could not conclude that the Veteran met the diagnostic criteria for a diagnosis of PTSD (essentially, due to the Veteran's impairment due to dementia) is consistent with the other evidence of record. Unfortunately, this evidence does not support a finding that the Veteran actually meets, or has at any point pertinent to this appeal met, the DSM-IV criteria for a diagnosis of PTSD, and no competent, probative evidence showing that the criteria for such a diagnosis have been met has been presented or identified. Furthermore, as regards any direct assertions by the Veteran attempting to establish that he currently has PTSD on the basis of lay assertions, alone, the Board finds that such assertions provide no basis for allowance of the claim. The matter of whether the Veteran actually meets the diagnostic criteria for PTSD is a complex medical question within the province of trained professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). Although lay persons are competent to provide opinions on some medical issues (see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific matter of whether the Veteran meets the diagnostic criteria for PTSD falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (providing that lay persons are not competent to diagnose cancer). Hence, the lay assertions in this regard have no probative value. For all the foregoing reasons, the Board finds that the claim for service connection for PTSD must be denied. In reaching the conclusion to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as no competent, probative evidence supports a finding that the diagnostic criteria for PTSD are met, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for PTSD is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs