Citation Nr: 1324771 Decision Date: 08/05/13 Archive Date: 08/13/13 DOCKET NO. 10-05 501 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD H. Bunker, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1971 to June 1973. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. FINDINGS OF FACT 1. The Veteran did not serve in Vietnam; nor was he exposed to combat-related or other qualifying 2. PTSD is not shown to be due to a disease or injury in-service or to any incident of military service. CONCLUSION OF LAW The criteria for the establishment of service connection for PTSD are not met. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). The notice requirements were met by a letter sent to the Veteran in July 2008. This letter advised the Veteran of the information necessary to substantiate his claim and of his and VA's respective obligations for obtaining specified types of evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159(b). This letter also advised the Veteran of how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran has not alleged that VA failed to comply with the notice requirements of the VCAA, and he was afforded a meaningful opportunity to participate effectively in the processing of his claim, and has in fact provided additional arguments at every stage. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005). The notice required by 38 U.S.C.A. § 5103(a) should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005). That was done in this case. The Veteran's service treatment records and VA treatment records are in the file. The VA has also obtained private treatment records and associated them with the file. The Veteran has not indicated that there are any additional outstanding records to be obtained. The duty to assist with obtaining medical records has been satisfied. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. A VA examination was not provided in conjunction with the Veteran's claim for PTSD, and, as discussed below, the evidence of record does not warrant one. See 38 C.F.R. § 3.159(c)(4). In the present case, there is no competent evidence of record to support a finding that the Veteran's PTSD is related to service. As noted below, the Veteran's primary contention is that he has PTSD as a result of combat service in Vietnam. However, the Veteran did not serve in Vietnam, instead serving in Alaska and the Continental United States, and to the extent that physicians have diagnosed him with PTSD on this basis, their opinions have no probative value. Although the Veteran himself has provided statements that his PTSD is related to service, and although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, determining the diagnosis and etiology of a psychiatric condition, this 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) (lay persons not competent to diagnose cancer); see also Waters v. Shinseki, 601 F.3d 1274, 1279 (Fed. Cir. 2010) (the Veteran's conclusory lay statement is insufficient to trigger VA's duty to provide an examination with an opinion). The Veteran has not satisfied all the elements of McLendon; therefore, VA is not required to provide him with a VA examination in conjunction with his claim. In light of the foregoing, all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition 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). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disorder on a direct basis, generally there must be probative 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 Hickson v. West, 12 Vet. App. 247, 253 (1999). In order to establish service connection for PTSD, there must be (1) medical evidence establishing a diagnosis of the disorder, (2) credible supporting evidence that the claimed in-service stressors actually occurred, and (3) a link, established by medical evidence, between the current symptomatology and the claimed in-service stressors. 38 C.F.R. § 3.304(f). The Veteran is alleging he has PTSD as a result of an incident which occurred during training where a hand grenade went off close near him and his ears began to bleed. He also reported an incident when his superior officer held a gun to his head and threatened to kill him. The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a 'competent' source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. 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. Layno v. Brown, 6 Vet. App. 465 (1994). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when 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); (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); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. In certain instances, however, lay evidence has been found to be competent with regard to a disease with 'unique and readily identifiable features' that is 'capable of lay observation.' See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the 'authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence'). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The preponderance of the evidence is against the claim and the appeal will be denied. The Board has reviewed the Veteran's service treatment records and observes there is no entrance medical examination of record. At his May 1973 separation examination the Veteran reported frequent trouble sleeping and loss of memory or amnesia. However, it was noted he had a head injury as an infant which might be causing possible memory loss. He denied nightmares, depression or excessive worry and nervous trouble of any sort. No psychiatric diagnosis was made. This evidence weighs against the Veteran's claim that this condition began in service. The law also provides that even if a chronic condition is not shown during service, service connection may be established under 38 C.F.R. § 3.303(d) if the evidence shows a disease first diagnosed after service was incurred in service. The Veteran has received treatment at the VA Medical Center for PTSD. However, as noted above, the treatment records indicating the possible presence of PTSD are premised on the examiners' belief that the Veteran served in Vietnam. However, all relevant service personnel records indicate that the Veteran served in Alaska and in the United States. The Veteran sent in stressor statements in July 2008 and May 2009 alleging that he witnessed a soldier mishandle a hand grenade and that it went off in close proximity to him, causing his ears to bleed. He also reported a superior officer held a gun to his head and threatened to kill him. In June 2009 the RO determined that the Veteran had not submitted sufficient information to verify his claimed stressors. The Veteran did not identify his specific unit designation or the specific dates of the incidents. Accordingly, the RO could not submit the statements to the Joint Services Records Research Center. The Veteran is competent to state his current symptoms, including hypervigilance, anxiety, paranoia, and anger control issues. While competent to discuss symptoms, the Veteran is not then competent to diagnose PTSD and relate it to service. Accordingly, the Board assigns the Veteran's statements no probative value. The Board has considered the Veteran and his wife's statements that he has PTSD as a result of incidents which happened in service. See e.g., February 2010 statement. As noted, although lay persons such as the Veteran are competent to provide opinions on some medical issues, see Kahana, supra. diagnosing and determining the etiology of PTSD falls outside the realm of common knowledge of a lay person. Additionally, the Veteran has offered only conclusory statements regarding the relationship between his in service incidents and current PTSD. Accordingly, the preponderance of the evidence is against the claim for service connection and the benefit of the doubt rule does not apply. See 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). ORDER Entitlement to service connection for PTSD is denied. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs