Citation Nr: 1326517	
Decision Date: 08/20/13    Archive Date: 08/26/13

DOCKET NO.  09-06 123	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Paul, Minnesota


THE ISSUE

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

D.J. Drucker, Counsel


INTRODUCTION

The Veteran had active military service from April 1977 to July 1978.

This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota.

In May 2010, the Veteran testified during a hearing at the RO before the undersigned.  A transcript of the hearing is of record.

In August 2010 and November 2011, the Board remanded the Veteran's case to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development.

In a September 2012 decision, the Board denied service connection for a bipolar/schizoaffective disorder and anxiety disorder.  At that time, the Board remanded the Veteran's claim for service connection for PTSD to the RO via the AMC for further development.

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

The evidence of record preponderates against a finding that the Veteran has PTSD that had its clinical onset in service or is otherwise related to his active duty. 






CONCLUSION OF LAW

The criteria for service connection for PTSD have not been met.  38 U.S.C.A. §§ 1131, 5103, 5103(A), 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duty to Notify and Assist

As provided for by the Veterans Claims Assistance Act (VCAA), VA has a duty to notify and assist claimants in substantiating 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 and 3.326(a) (2012).  

Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  

VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

In Bryant v. Shinseki, 23 Vet App 488 (2010), the United States Court of Appeals for Veterans Claims (court) held that 38 C.F.R. 3.103(c)(2) (2009) requires that the Veterans Law Judge who chairs a hearing fulfill two duties to comply with the above the regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  Here, during the hearing, this Veterans Law Judge outlined the issue on appeal and suggested that any evidence tending to show that pertinent disability was related to active duty or a service-connected disability would be helpful in establishing the claim.  Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2); they have not identified any prejudice in the conduct of the Board hearing.

In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Id. at 486.  

Here, the Veteran was sent letters in February 2008 and October 2012 that provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal.  The notice also explained how VA assigns an appropriate disability rating or effective date.  Accordingly, no further development is required with respect to the duty to notify.

Next, VA has a duty to assist the Veteran in the development of his claim.  This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  All reasonably identified and available VA and non-VA medical records were obtained.  A review of the Veteran's Virtual VA electronic file does not reveal any additional evidence regarding the claim for service connection for PTSD.

The Veteran was afforded a VA examination in November 2010 and the examination report, with a December 2011 Addendum, is of record.  The Board finds that the November 2010 VA examination report, with the December 2011 Addendum, is adequate for rating purposes as the claims file was reviewed, the examiners reviewed the pertinent history, provided clinical findings and diagnoses, and offered an etiological opinion with rationale from which the Board can reach a fair determination.  The records satisfy 38 C.F.R. § 3.326 (2012).  
As noted above, in September 2012, the Board remanded the Veteran's case to the RO for further development that included providing him with a requisite duty to assist letter regarding his claim for service connection for PTSD and then undertaking any additional development so indicated by the record.  There has been substantial compliance with the Board's 2012 remand, as the Veteran was provided with a letter in October 2012 that requested he provide the specifics of his alleged stressful events in service and the treatment he received for the claimed PTSD disorder.

In an October 25, 2012 signed statement, the Veteran said he that "never had treatment for PTSD."  He further stated that VA should "refer to hearing +past evidence for assault."  In a separate stressor statement (VA Form 21-0781a), he maintained that, in 1978, he witnessed nuclear bomb technicians smoking hashish at Aviano Air Base in Italy, and also indicated that he was assaulted.  He provided no specifics regarding the alleged events. 

Then, in a May 22, 2013 signed statement, the Veteran requested more time to submit evidence in his case on appeal.  In a June 11, 2013 letter, the Board advised him that good cause was shown to grant his motion for more time.  He was informed that he had 60 days from the letter's date to submit additional evidence or argument directly to the Board.  The Veteran was informed that he could waive initial RO review of any evidence submitted to the Board.  In June 2013, he submitted a lengthy written statement regarding his alleged traumatic events in service and waived initial RO review of new evidence.  

Notwithstanding the absence of medical records, and affording the Veteran the benefit of the doubt, nevertheless, his description of his stressful events in service has been vague.  During his May 2010 Board hearing, and in April 2011 and October 2012, he stated that, in 1978 at Aviano Airbase in Italy, he saw technicians smoking hash while performing routine maintenance on nuclear bombs that made him sick.  He also indicated that he was assaulted in service.  

In a June 2013 statement, the Veteran explained that he had developmental disabilities and did not know he was a conscientious objector while in service.  In 1978, while he was in Aviano, terrorists killed civilians and police.  He was placed in a hostile foreign environment with curfews, roadblocks, border crossings, convoys, long alerts, and daily briefings regarding terrorist activities.  He did not remember dates, times, and names, but recalled the sequence of traumatic events and periods.  The Veteran reiterated that his first traumatic event was when he saw the two technicians smoking hashish.  

Soon after, the Veteran's second stressful event occurred while stationed in the Victor area, while in a gate shack, when he was authorized to use maximum force to protect the area with an uploaded plane.  He saw the identification of two pilots and then recalled seeing several weapons pointed at him.  His security clearance was revoked and his chain of command implemented a campaign of persecution and abuse against him.  He stayed drunk and high from that point, as he was a victim, accused of selling drugs and throwing rocks through headquarters windows.  

The Veteran's third traumatic event occurred in Italy when he was summoned to headquarters on the flight line where members of his chain of command antagonized and said dehumanizing things to him.  He did not know how long he was assaulted but knew his life was at stake.  The Veteran's failure to respond to the AMC/RO's request for specific information regarding his stressful event(s) leaves the Board with virtually no factual information upon which to rely regarding the alleged traumatic event(s) and assault. 

The Veteran did not provide any specific information regarding his alleged stressful events in service to enable VA to even attempt to verify the claimed stressors.

The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and non-VA treatment and examinations, and records considered by the Social Security Administration (SSA) in its award of disability benefits to the Veteran.  The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified.  The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim.  

For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).

II. Factual Background and Legal Analysis

The Board notes that it has thoroughly reviewed the record in conjunction with this case that includes the Veteran's service treatment records, VA and non-VA medical records and examination reports, dated from 1979 to 2011, and the Veteran's written statements and oral testimony in support of his claim.  Although there is an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  Rather, the analysis below will focus specifically on what the evidence shows, or fails to show, on the claim.  See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). 

The Board's September 2012 decision denied service connection for a psychiatric disability to include Aspberger's syndrome, Tourette's syndrome, and bipolar disorder.  (The decision also considered schizophrenia and anxiety disorder).  The Veteran did not appeal this decision to the court.  Thus, the only matter for Board consideration at this time is his claim for service connection for PTSD.

Under 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303, a veteran is entitled to disability compensation for disability resulting from personal injury or disease incurred in or aggravated by active military service.

Case law has established that 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, 1377 (Fed. Cir. 2007).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the appellant's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011).

To establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service" - the so-called "nexus" requirement."  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  This is a direct service connection theory of entitlement.

A service connection claim must be accompanied by evidence which establishes that the claimant currently has the claimed disability.  See Degmetich v. Brown, 104 F. 3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992).  More recently, the court has held that the current disability requirement is satisfied when a claimant has a disability at the time of filing the claim or during the pendency of that claim, even if the disability has since resolved.  McLain v. Nicholson, 21 Vet. App. 319 (2007).

Where the determinative issue involves medical causation or a medical diagnosis, there must be competent evidence to the effect that the claim is plausible.  

Although the Veteran is competent in certain situations to provide a diagnosis of a simple condition such as a headache, varicose veins, or tinnitus, he is not competent to provide evidence as to more complex medical questions, such as the etiology of psychiatric pathology, as is the case here.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). 

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The Veteran here seeks service connection for PTSD.  Prior to July 13, 2009, service connection for PTSD required that there be (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; (3) and credible supporting evidence that the claimed in-service stressor actually occurred.  38 C.F.R. § 3.304(f) (2009); see also Cohen v. Brown, 10 Vet. App. 128, 138 (1997).  The diagnosis of a mental disorder must conform to the Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV) and be supported by the findings of a medical examiner.  See 38 C.F.R. § 4.125(a) (2012). 

Effective July 13, 2010, VA amended 38 C.F.R. § 3.304(f) by liberalizing, in certain circumstances, the evidentiary standards for establishing the occurrence of an in-service stressor for non-combat Veterans.  See 75 Fed. Reg. 39,843-39,852 (effective July 13, 2010) (codified at 38 C.F.R. § 3.304(f)) (2012).  Section 3.304 (f) was amended to include a new paragraph (f)(3) that reads as follows, in pertinent part: 

(f)(3) If a stressor claimed by a veteran is related to the 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 the 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 the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 

See 75 Fed. Reg. 39843-51 (July 13, 2010) and corrective notice at 75 Fed. Reg. 41092 (July 15, 2010).

If the evidence establishes that the 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 conditions or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the in-service stressor.  38 U.S.C.A. § 1154(b) (West 2002 and Supp. 2012).  Where a current diagnosis of PTSD exists, the sufficiency of the claimed in-service stressor is presumed.  Cohen v. Brown, 10 Vet. App. 128, 144 (1997).  Nevertheless, credible evidence that the claimed in-service stressor actually occurred is also required.  38 C.F.R. § 3.304(f). See YR v. West, 11 Vet. App. 393, 397-399 (1998) (credible evidence is not limited to service department records and can be obtained from any source); see also Anglin v. West, 11 Vet. App. 361, 367 (1998); Gaines v. West, 11 Vet. App. 353, 357 (1998), Cohen v. Brown, 10 Vet. App. at 138; Suozzi v. Brown, 10 Vet. App. 307 (1997).

The Veteran has contended that his stressor is related to a fear of terrorist activity in that he served in Aviano, Italy, in 1978, during the Cold War.  However, the evidence does not show that he served in combat or was exposed to hostile or terrorist activity.  He asserts that he witnessed nuclear bomb technicians smoking hashish that caused his claimed PTSD.  The Veteran's assertions also appear to suggest that his claimed PTSD, at least in part, may be rooted in a personal assault experienced during active service (see April 2011 October 2012, and June 2013 correspondence).

Cases involving allegations of a personal assault fall within the category of situations in which it is not unusual for there to be an absence of service records documenting the events of which the Veteran complains.  See, e.g., Patton v. West, 12 Vet. App. 272, 281 (1999).  As noted under Paragraph 5.14(d), Part III, of VA's Adjudication Procedure Manual, M21-1, personal assault is an event of human design that threatens or inflicts harm.  Examples of this include rape, physical assault, domestic battering, robbery, mugging, and stalking.  Id.  Service records may not contain evidence of personal assault, and alternative sources, including testimonial statements from confidants such as family members, roommates, fellow service members, or clergy, may provide credible evidence of an in-service stressor premised on personal assault.  See YR v. West, 11 Vet. App. 393, 397-399 (1998) (credible evidence is not limited to service department records and can be obtained from any source).  The Manual also notes that since personal assault, to include sexual assault, can be an extremely personal and sensitive issue, many incidents of personal assault are not officially reported, making it difficult to obtain direct evidence, and requiring that the alternative evidence be sought.  Id.   

Under § 3.304(f)(5), if a PTSD claim is based on in-service personal assault, evidence from sources other than the Veteran's service records may corroborate the Veteran's account of the stressor incident.  Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases, and statements from family members, roommates, fellow service members, or clergy.  Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes.  

In cases of claimed personal assault, VA established special procedures for evidentiary development.  See M21-1, supra.  The procedures take into account the difficulty establishing the occurrence of the stressor through standard evidence, and the need for development of alternate sources of evidence.  See Patton v. West, 12 Vet. App. at 277; YR v. West, 11 Vet. App. at 398-399; Cohen v. Brown, 10 Vet. App. at 139. 

The starting point for any determination with regard to PTSD is whether there is a "stressor."  Under all versions of the controlling regulation, there must be credible supporting evidence that the claimed in-service stressor(s) actually occurred.  38 C.F.R. § 3.304(f).  The question of whether the Veteran was exposed to a stressor in service is a factual determination and VA adjudicators are not bound to accept such statements simply because treating medical providers have done so.  See Wood v. Derwinski, 1 Vet. App. 190 (1991); Wilson v. Derwinski, 2 Vet. App. 614 (1992).  The existence of an event alleged as a stressor that results in PTSD (though not the adequacy of the alleged event to cause PTSD) is an adjudicative, not a medical, determination.  Zarycki v. Brown, 6 Vet. App. 91 (1993). 

As the Veteran does not allege that he engaged in combat, and as his reported stressors are not related to combat, his assertions, standing alone cannot, as a matter of law, provide evidence to establish that an in-service event claimed as a stressor occurred.  See Dizoglio v. Brown, 9 Vet. App. 163 (1996); West v. Brown, 7 Vet. App. 70, 76 (1994).  Further, service department records must support, and not contradict, the claimant's testimony regarding non-combat stressors.  Doran v. Brown, 6 Vet. App. 283 (1993).  This does not mean that he cannot establish the alleged in-service event occurred; it only means that other "credible support evidence" from some source is necessary.  See Cohen.  

However, as set forth in detail below, there is no current diagnosis of PTSD, thus, any further discussion as to whether there is credible supporting evidence of the Veteran's alleged stressors, i.e., whether service records or other independent credible evidence corroborates the alleged stressor, is unwarranted at this time.  See Dizolgio, supra.

Service treatment records do not discuss treatment for a psychiatric disorder.  The Veteran's service personnel records show that he was given an early discharge due to behavioral problems and a poor attitude.
Post-service, VA and non VA medical records and examination reports, dated from 1979 to 2011, do not reflect complaints, diagnosis or treatment referable to PTSD.  In fact, in his October 2012 signed statement, the Veteran denied receiving treatment for PTSD.

VA hospitalized the Veteran in July 1979 for treatment of drug dependency and anxiety.  Records note that he was recently released on bail from prison on charges of abduction, robbery, and a rape.  He was returned to a VA facility by court order in August 1979 to determine if he was competent to stand trial.  He was found to be severely depressed, but not currently psychotic.  In November 1979, he was considered competent to stand trial.  

VA hospital records, dated from August to November 1979, indicate that the Veteran was diagnosed with psychotic depression, and diffuse central nervous system dysfunction.  

Private medical records, dated from 1980 to 1985, describe psychiatric evaluations of the Veteran, but do not discuss complaints, diagnoses or treatment referable to PTSD.

VA hospitalized the Veteran in November 2005.  The records note his prior hospitalizations and a past medical history of bipolar affective disorder and polysubstance dependence.  The Veteran reported that he also had Asperger's disorder and Tourettes Disorder.  On examination at admission, a bipolar affective disorder, mixed, with psychosis, was diagnosed.

SSA records reflect that the Veteran was found totally disabled and unable to work since December 2005 due to affective/mood disorders and personality/conduct disorders.

Results of a PTSD screening performed by VA in February 2007 were negative.

Private treatment records from M.F., Psy.D., a psychologist, dated from May 2008 to September 2010, include a May 2008 record showing that the Veteran met diagnostic criteria for Asperger's syndrome.  In a July 2008 signed statement, Dr. M.F. stated that the Veteran met all eight criteria for Asperger's syndrome and struggled with a major depressive disorder and an anxiety disorder, both of which were secondary to his Asperger's syndrome.

During his May 2010 hearing, the Veteran reported that VA diagnosed him with autism in 1979.  See Board hearing transcript at page 2.  He stated that he experienced some very traumatic instances in service.  Id. at 3.  His job was to protect nuclear weapons in the ground and, while at Aviano Airbase, Whiskey area, he saw technicians who were supposed to be performing routine maintenance and services on nuclear bombs blatantly smoking hashish out of a can and drinking wine.  Id.  This upset him.  Id. at 4.  The Veteran stated that his experiences in service led him to criminal behavior (rape and assault) after service.  Id. at 6.  He reported his current medical treatment by M.F. for Asperger's syndrome and autism.  Id. at 9.

A November 2010 VA examination report reflects diagnoses of schizoaffective disorder, bipolar disorder type (not congenital/developmental); anxiety disorder (not developmental); cannabis abuse, intermittent (not congenital/developmental); and personality disorder, not otherwise specified (NOS) (not congenital/developmental).

In a December 2011 addendum, the November 2010 VA examiner indicated that the Veteran's schizoaffective disorder, bipolar type, was not a separate condition from bipolar disorder and should be deemed the same psychopathological process. 

The Veteran seeks service connection for PTSD.  Post service medical evidence and the VA examination report show that he has a schizoaffective disorder, bipolar disorder type, an anxiety disorder, and personality disorder.  There is no objective medical evidence to show that he has PTSD.  

Moreover, in December 2011, the VA examiner explained that the schizoaffective disorder, bipolar type, was not a separate condition from bipolar disorder and should be deemed the same psychopathological process.  See Brammer v. Derwinski, 3 Vet. App. at 225.  The examiner provided a clear rationale for his opinion.  There is no medical evidence of record to contradict the VA examiner's opinion.  

The Veteran does not exhibit a PTSD disability that had its clinical onset in service or that is otherwise related to active service.  In the absence of proof of a present disability or any complaints related to chronic or recurrent symptoms, there can be no valid claim, including under the provisions allowing service connection based on an undiagnosed illness.  See 38 C.F.R. § 3.317; Brammer v. Derwinski, 3 Vet. App. at 225 and McClain v. Nicholson, 21 Vet. App. at 319.  See also Romanowsky v. Shinseki, No. 11-3272 (Vet. App. May 9, 2013) (noting that a determination as to whether a diagnosis sufficiently proximate to the filing of a claim so as to constitute evidence of a current diagnosis is a factual finding to be made by the Board in the first instance).  

In the absence of any competent evidence of PTSD disability, the Board must conclude the Veteran does not currently suffer from such a disability.  For such reasons, service connection for PTSD is not warranted.

In adjudicating this claim, the Board must assess the Veteran's competence and credibility.  See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). 

In Barr v. Nicholson, 21 Vet. App. 303 (2007), the court emphasized that lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witnesses personal knowledge.  See also 38 C.F.R. § 3.159(a)(2) (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 the facts or circumstances and conveys matters that can be observed and described by a lay person). 

The Veteran is competent to describe his observable symptoms, such as anxiety or depression.  However, a lay person is only competent to establish a diagnosis in the following very limited circumstances:  (1) the medical issue is within the competence of a layperson, (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, 1376-77  (Fed. Cir. 2007).  In this case, a diagnosis of PTSD is a complex finding that goes beyond the mere observation of symptoms by a lay person- in other words, the clinical pathology of PTSD disorders is not readily recognizable by a layman, such as varicose veins or acne.  Moreover, at no time does the record reveal a diagnosis of PTSD rendered by a medical professional.  Thus, the lay evidence here does not establish current disability in this case.  As already noted above, the competent medical evidence indicates that the Veteran has schizoaffective disorder, bipolar type, and not PTSD.  

In sum, a clear preponderance of the objective and probative medical evidence of record is against the Veteran's claim for service connection for PTSD and his claim must be denied.  The benefit-of-doubt rule does not apply when the Board finds that a preponderance of the evidence is against the claim.


ORDER

Service connection for PTSD is denied.



____________________________________________
ERIC S. LEBOFF
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs