Citation Nr: 1324004 Decision Date: 07/29/13 Archive Date: 08/07/13 DOCKET NO. 11-09 460 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). ATTORNEY FOR THE BOARD C. Ozger-Pascu, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1961 to July 1966, including service in Vietnam. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 decision of a Department of Veterans Affairs (VA) Regional Office (RO). FINDING OF FACT The probative evidence indicates that the Veteran is not diagnosed with PTSD or any psychiatric disorder. CONCLUSION OF LAW The criteria for establishing service connection for PTSD have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 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)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify a 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. 38 C.F.R. § 3.159(b) (2012). The 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 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). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In this case, a December 2009 letter provided the Veteran with notice regarding what information and evidence was needed to substantiate his claim for service connection for PTSD, what information and evidence the Veteran needed to submit and what information and evidence VA would obtain. The letter also advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran including service treatment records and service personnel records. Additionally, the Veteran was afforded a VA mental health examination in connection with his claim. The Veteran has indicated he does not want a hearing. The record reflects the Veteran receives Social Security benefits based on age, not disability. Thus, such records would not be relevant to the claim. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). The Veteran was 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 the Veteran and VA in obtaining such evidence. Thus, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notices is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis Service connection may be established for a 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. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection for PTSD generally requires: (1) medical evidence diagnosing PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f) (2012); see also Cohen v. Brown, 10 Vet. App. 128 (1997). The evidence required to support the occurrence of an in-service stressor varies depending on whether the appellant was engaged in combat with the enemy or whether the stressor is related to that veteran's fear of hostile military or terrorist activity. 38 C.F.R. § 3.304(f). If the evidence establishes that a veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of such Veteran's service, his lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(f) (2012). Where the record does not establish that a veteran engaged in combat with the enemy, his assertions of in-service stressors, standing alone, cannot provide evidence to establish an event claimed as a stressor actually occurred. Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). Rather, he must provide "credible supporting evidence from any source" that the event alleged as the in-service stressor occurred. Cohen v. Brown, 10 Vet. App. 128, 147 (1997). However, effective July 13, 2010, if a stressor claimed by a veteran is related to that veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that a veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of that veteran's service, a veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(3)). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Board has reviewed all the evidence in the Veteran's claims file and electronic Virtual VA 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 the 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 claim file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran's service treatment records (STRs) and his separation examination are negative for PTSD or any other psychiatric disorders. The Veteran claims service connection for PTSD is warranted because he had to collect the bodies of deceased service members. He also stated that he engaged in small arms fire fights with the enemy and that he was fired upon on multiple occasions. He further asserts that he was responsible for eleven service members in his chain of command for whom he felt great responsibility and that one time at Christmas his group was attacked in a roadblock and had to escape. The Veteran's DD Form 214 confirms that the Veteran served in Vietnam, but reveals no combat medals or decorations. The RO conceded that the Veteran was exposed to hostile military and terrorist activities in Vietnam pursuant to 38 C.F.R. § 3.304(f)(3). Notwithstanding the RO's finding that the Veteran has a valid stressor, the Board finds that the claim for service connection for PTSD must fail because the Veteran does not have a current disability. In this case, there is no medical evidence of record diagnosing PTSD or any other psychiatric disorder. The Board notes the Veteran has not identified any treatment providers, despite being requested to do so in the December 2009 VCAA letter. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence."). In February 2011, the Veteran was afforded a VA compensation examination. During this examination, the examiner reviewed the Veteran's file, interviewed the Veteran regarding his PTSD symptoms and performed an examination. The examiner determined that the Veteran does not currently meet the diagnostic criteria for PTSD and that similarly he does not meet the diagnostic criteria for any Axis I disorders. The examiner explained that the Veteran is not currently impaired as evidenced by his active social life, good family relations and stable outlook and mood. She observed that although the Veteran described sleep problems, these did not cause the Veteran any significant impairment. There is no medical opinion to the contrary. To the extent the Veteran contends that he currently suffers from PTSD, as a lay person, the Veteran has not shown that he has specialized training sufficient to render such a diagnosis. Accordingly, the Veteran's opinion as to a diagnosis of PTSD is not competent medical evidence because the diagnosis of psychiatric disorders requires medical expertise to determine. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). The Board finds the opinion of the VA examiner to be of greater probative value than the Veteran's lay contentions because it is offered by a medical professional trained and experienced in the diagnosis of psychiatric disorders. The existence of a current disability is the cornerstone of a claim for VA disability compensation. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C.A. §§ 1110; 1131. In the absence of proof of present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Degmetich v. Brown, 104 F.3d 1328 (1997) (38 U.S.C.A. § 1131 requires existence of present disability for VA compensation purposes); see also Wamhoff v. Brown, 8 Vet. App. 517, 521 (1996). Here, the competent and probative evidence shows the Veteran does not currently have a diagnosis of PTSD, or any psychiatric disorder. In the absence of a present disability, there is no basis upon which the claim of service connection can be granted. As such, service connection for PTSD is not warranted. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Entitlement to service connection for PTSD is denied. ______________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs