Citation Nr: 1320112 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 12-24 682 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Robert C. Brown Jr., Attorney at Law ATTORNEY FOR THE BOARD E. Pomeranz, Counsel INTRODUCTION The Veteran had active service from September 1951 to August 1953. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an April 2012 rating action by the Department of Veterans Affairs (VA) Regional Office (RO) located in Muskogee, Oklahoma. In the Veteran's substantive appeal (VA Form 9), received in September 2012, he indicated that he desired a videoconference hearing before a member of the Board. A letter from the RO to the Veteran, dated in April 2013, shows that at that time, the RO had scheduled the Veteran for a videoconference hearing before the Board in June 2013. However, he failed to report for his scheduled hearing. His request for a hearing is therefore considered withdrawn. Please note 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). FINDING OF FACT There is no competent evidence of record showing that the Veteran has a current diagnosis of PTSD. CONCLUSION OF LAW Entitlement to service connection for PTSD is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA enhanced VA's duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. 38 U.S.C.A. §§ 5100, 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 VCAA also redefined the obligations of VA with respect to the duty to assist the veteran with the claim. Id. In the instant case, the Board finds that VA fulfilled its duties to the Veteran under the VCAA. Duty to Notify VA has a duty to notify the veteran of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. The Board concludes that the letters dated in July 2011 and March 2012 that were sent to the Veteran adequately apprised him of the information and evidence needed to substantiate the claim. The RO thus complied with VCAA's notification requirements. In order to meet the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), VCAA notice must: (1) inform the claimant about the information and evidence necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). Additionally, on March 3, 2006, the United States Court of Appeals for Veterans' Claims (Court) issued a decision in Dingess v. Nicholson, 19 Vet. App. 473, 484, 486 (2006), which held that the VCAA 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. Those five elements include: (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. The Board finds that VA has met these duties with regard to the claim adjudicated on the merits in this decision. There is no issue as to providing an appropriate application form or completeness of the application. Written notice provided in July 2011 and March 2012 fulfills the provisions of 38 U.S.C.A. § 5103(a). That is, the Veteran received notice of the evidence needed to substantiate his claim, the avenues by which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. See Beverly, 19 Vet. App. at 394, 403; see also Mayfield v. Nicholson, 19 Vet. App. 103, 109-12 (2005) (Mayfield I) rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In addition, the July 2011 letter also informed the Veteran about how VA determines effective dates and disability ratings, as required by Dingess. The Board also recognizes that, according to Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004), proper VCAA notice must "precede an initial unfavorable [agency of original jurisdiction (AOJ)] decision on a service-connection claim." VA did provide such notice to the Veteran prior to the April 2012 decision that is the subject of this appeal in its July 2011 and March 2012 letters. With respect to the Dingess requirements, the Veteran was provided with notice of what type of information and evidence was needed to substantiate the claim, as well as the type of evidence necessary to establish a rating or effective date of an award (see letter from RO, dated in July 2011), and such notice was provided prior to the initial decision of the RO. See Dingess, supra. Accordingly, the RO provided proper VCAA notice at the required time. The Veteran has been provided the opportunity to respond to VA correspondence and over the course of the appeal has had multiple opportunities to submit and identify evidence. Furthermore, he has been provided a meaningful opportunity to participate effectively in the processing of his claim by VA. Duty to Assist VA also has a duty to assist the veteran in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A(a) ("The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the . . . claim"). This duty includes assisting the veteran in obtaining records and providing medical examinations or obtaining medical opinions when such are necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(b), (c), (d) (setting forth Secretary's various duties to claimant). VA informed the Veteran of its duty to assist in obtaining records and supportive evidence. In this regard, the Veteran has not submitted any evidence in support of his claim. In a VA Form 21-526b, Veteran's Supplemental Claim For Compensation, dated in May 2011, the Veteran noted that he did not have any private treatment records to submit. In addition, in response to the request for the name and location of the VA Medical Center that had relevant treatment records, the Veteran noted "not applicable." The evidence of record includes the Veteran's service treatment records. With respect to an examination, the RO did not provide the Veteran with an examination regarding his claim. In addition, no medical opinion was obtained with respect to the Veteran's claimed disorder. Regarding the Veteran's claimed PTSD, the Board finds that a VA examination is not necessary to decide that claim as the standards of the Court's decision in McLendon v. Nicholson, 20 Vet. App. 79 (2006), have not been met. Under McLendon, VA must provide a medical examination in a service connection claim when there is (1) competent evidence of a current disability or persistent or recurrent 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 or 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 VA to make a decision on the claim. Id. at 81. As discussed in greater detail below, there is no competent evidence that the Veteran has a current diagnosis of PTSD. Therefore, the first factor in determining whether a medical examination is necessary is not satisfied and the Board declines to afford the Veteran an examination. Recently, the Federal Circuit has addressed the appropriate standard to be applied in determining whether an examination is warranted. In Waters v. Shinseki , 601 F.3d 1274 (Fed. Cir. 2010) and Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010), the Federal Circuit held that there must be "medically competent" evidence of a current disability. In this case, the Veteran has not submitted any medical evidence showing a current diagnosis of PTSD. Accordingly, the Board finds that referral for a VA medical examination is not warranted. Based on the foregoing, it is the Board's determination that the VA fulfilled its VCAA duties to notify and to assist the Veteran, and thus, no additional assistance or notification was required. The Veteran has suffered no prejudice that would warrant a remand, and his procedural rights have not been abridged. See Bernard, supra. Service Connection Claim Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may 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) (2012). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson v. West, 12 Vet. App. 247, 253 (lay evidence of in-service incurrence is sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). However, in Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic by 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013). For disabilities that are not listed as chronic under 38 C.F.R. § 3.303(b), such as the claimed disability in this case, PTSD, the only avenue for service connection is by showing in-service incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay persons can also provide an eye-witness account of an individual's visible symptoms. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that a layperson may comment on lay-observable symptoms). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter 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"). To establish entitlement to service connection for PTSD the evidence must satisfy three basic elements. Generally, there must be (1) medical evidence diagnosing PTSD; (2) a link, established by medical evidence, between current symptoms of PTSD and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred (although several presumptions exist which serve to ease this evidentiary burden in some cases). 38 C.F.R. § 3.304(f). The PTSD diagnosis must be made in accordance with the criteria of Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). 38 C.F.R. § 4.125(a). A revision of 38 C.F.R. § 3.304(f) (3) (effective July 13, 2010) (which would apply in the instant case, if pertinent, as an appeal in this matter was before the Board but not yet decided on July 13, 2010) does not, in fact, apply as the Veteran did not have wartime service, i.e., did not serve in combat, and the record does not show or suggest that he had any exposure to terrorist activity. In this case, the Veteran contends that he currently has PTSD due to his period of active service in the United States Air Force. The Veteran's only reported stressor is an incident which allegedly occurred in June or July 1953. According to the Veteran, at that time, he was stationed at Walker Air Force Base in New Mexico and was assigned to the 36th Bomb Squadron. He indicated that he was working on maintenance for B36 bombers. The Veteran reported that he observed a B36 airplane crash and burn up. When the airplane tried to land, there was a malfunction and the crew "bailed out" of the plane while it sped down the runway. The plane crashed at the end of the runway and burned up. The Veteran noted that he saw crew jumping off the rear emergency exit and fall to the ground. According to the Veteran, he did not know if anyone died and he did not know any of the flight crew. The Veteran's service treatment records are negative for any complaints or findings of any psychiatric disability, to include PTSD. In August 1953, the Veteran underwent a separation examination. He was clinically evaluated as "normal" for psychiatric purposes. In May 2011, the Veteran filed a claim for service connection for PTSD. He has submitted no evidence in support of his claim. The only evidence supporting the Veteran's claim is his own opinion that he currently has PTSD that is related to his alleged in-service stressor of witnessing a plane crash. With respect to the Veteran's alleged in-service stressor, it has not been verified. In an April 2012 Memorandum, the U.S. Army and Joint Service Records Research Center (JSRRC) determined that the information required to corroborate the stressful events described by the Veteran was insufficient to send to the JSRRC and/or insufficient to allow for meaningful research of Marine Corps or National Archives and Records Administration (NARA) records. In VCAA letters sent to the Veteran, dated in July 2011 and March 2012, he was asked to provide the tail number of the plane and the complete unit the bomber belonged to and the names of those who were injured. The evidence of record is negative for a reply from the Veteran. In addition, the JSRRC reported that the according to the Veteran's personnel records, he was assigned to the 39th Bomb Squadron, not the 36th Bomb Squadron. Thus, it was unknown if the bomber belonged to the 36th or 39th Bomb Squadron. In this case, even if the Board assumes for the purposes of this decision that the stressor cited above occurred, the evidence of record is negative for a diagnosis of PTSD. The only evidence supporting the Veteran's claim is his own opinion that he currently has PTSD that is related to his alleged in-service stressor. The Veteran is competent to testify as to his observations. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In addition, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (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). However, unlike disabilities which may be observable as to both their incurrence and their cause, such as a dislocated shoulder, the cause of a psychiatric disability is not readily apparent to lay observation, and the Court has held that psychiatric diagnoses are generally the province of medical professionals. See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"). See also Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis). In this regard, it has not been established that the Veteran is otherwise qualified through specialized eduction, training, or experience to state that he has PTSD. Therefore, his opinion that he currently has PTSD which is related to his period of active service is not competent evidence. In light of the above, there is no competent evidence of record showing that the Veteran has a current diagnosis of PTSD. Thus, given that there is no current diagnosis of PTSD, stressor verification is simply not warranted. In this case, without a diagnosis of PTSD, the first requirement for establishing service connection for PTSD has not been met. Therefore, the Board finds that the preponderance of the evidence is against the claim for service connection for PTSD. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable and the Veteran's claim must be denied. 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for PTSD is denied. ____________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs