Citation Nr: 1326857 Decision Date: 08/22/13 Archive Date: 08/29/13 DOCKET NO. 11-10 933 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for Post-Traumatic Stress Disorder (PTSD). 2. Entitlement to service connection for an acquired psychiatric disorder other than PTSD, to include major depression. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs ATTORNEY FOR THE BOARD O. Lopez, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1963 to October 1967. This case comes to the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The issue of entitlement to service connection for an acquired psychiatric disorder other than PTSD, to include major depression, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The competent and credibile evidence shows that the Veteran does not have a diagnosis for PTSD. CONCLUSION OF LAW The criteria for service connection for PTSD have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and to Assist VA has a duty to notify and assist claimants in substantiating claims 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). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and 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). This 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). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. Indeed, VA's duty to notify has been satisfied. The Veteran was notified by the RO in a letter dated in December 2009 of the criteria for establishing service connection, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. He also was notified of how VA determines disability ratings and effective dates if service connection is awarded. This letter accordingly addressed all notice elements and predated the initial adjudication by the RO in April 2010. VA also has a duty to assist a veteran in the development of the claim. This duty includes assisting the veteran to obtain service treatment records (STRs) and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.19 (2012). The Veteran's STRs have been obtained and associated with the claims file. The Veteran's VA treatment records are also of record. Moreover, VA attempted to further assist the Veteran in substantiating his PTSD claim by sending him a letter, dated in March 2010, that asked him to provide additional details about his service in Vietnam to help corroborate his claimed in-service stressors of PTSD. VA also provided the Veteran an examination in November 2010 to address the nature and etiology of the claimed PTSD. 38 C.F.R. § 3.159(c) (4). To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the November 2010 VA examination was adequate as to the PTSD. The VA examiner considered all of the pertinent evidence of record, to include the Veteran's service treatment records, and personal statements and history. 38 C.F.R. § 3.159(c) (4). After a careful review of the file, the Board finds that all necessary development has been accomplished for the PTSD claim, and therefore that appellate review of that claim may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). No further notice or assistance is required to fulfill VA's duty to assist in the development of the PTSD 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. Merits of the Claim Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). Generally, "[t]o 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. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for PTSD requires: (1) medical evidence of a diagnosis of PTSD that conforms to the Diagnostic Statistical Manual, Fourth Edition (DSM-IV); (2) medical evidence of a link between the current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. §§ 3.304(f), 4.125(a) (2012). The credible supporting evidence necessary to establish that a claimed in-service stressor occurred depends on the type of stressor claimed. See 38 C.F.R. §§ 3.304(f). Here, the appeal is denied because the Veteran does not have a diagnosis for PTSD. Therefore, no additional discussion of the regulations addressing stressor occurrence is necessary. In rendering a decision on appeal, 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. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). 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, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, the tinnitus (ringing in the ears), etc.), (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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility 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). Reasonable doubt concerning any matter material to the determination is resolved in the Veteran's favor. 38 C.F.R. § 3.102. In support of his claim for PTSD, the Veteran submitted statements in which he stated that he was stationed at Air Force Base Da Nang in Saigon, Vietnam when it received several mortar and rocket attacks. He stated that these attacks occurred in March and May 1966. He also stated that rocket and mortar attacks occurred from August to September 1966 at Cho Le Vietnam, where he also transported body bags and wounded soldiers. He contends that he suffers from PTSD as a result of these events. After an unsuccessful attempt to verify the Veteran's service in Vietnam, VA sent him a letter asking for additional information. The Veteran did not respond to the letter. VA subsequently determined that the information required to corroborate the stressful events described by the Veteran was insufficient to send to the U.S. Army and Joint Services Records Research Center. The Veteran underwent a VA examination by a VA psychologist in November 2010. The examiner concluded that the Veteran did not meet the full criteria for a diagnosis of PTSD under the DSM-IV. Specifically, the examiner did not reject the Veteran's claimed in-service stressors. Instead, the examiner concluded that the Veteran did not have PTSD because his mental health issues had never met the standard causing clinically significant distress or impairment in social occupational, or other important area of functioning, i.e., criteria F of the DSM-IV diagnostic criteria for PTSD. The examiner supported his conclusion by pointing out specific examples, such as that the Veteran had always held a job, that he had been most recently employed for 22 years before his retirement in 2006, that the had been married to his current wife for 22 years, and that he is close to his stepdaughter. As stated above, the Board finds that the November 2010 VA examination was adequate as to the PTSD. The VA examination report shows the examiner considered all of the pertinent evidence of record, to include the Veteran's service treatment records, and personal statements and history. 38 C.F.R. § 3.159(c) (4). Moreover, Board finds the examination report to be the most probative evidence as to whether the Veteran has PTSD. Therefore, even assuming that the Veteran was exposed to the stressful events he described, service connection for PTSD cannot be established because the weight of the evidence shows that the Veteran does not have, as is required for service connection, a current diagnosis for PTSD under the DSM-IV. As to the Veteran's lay statements that he has PTSD, the Veteran lacks the competence to make such a diagnosis. See Jandreau at 1377; Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); and 38 C.F.R. § 3.159(a)(2). Assessment of any acquired psychiatric disorder requires mental health evaluation by a clinical psychologist or psychiatrist, not lay observation. It follows that the Veteran is not competent to assert that he experienced PTSD since service. PTSD is not diagnosed by unique and readily identifiable features and does not involve a simple identification that a layperson is competent to make. As alluded to, the determination of both the diagnosis and etiology of PTSD must be made by a mental health profession, pursuant to the DSM-IV. This requires medical expertise that the Veteran fails to possess, such that the Veteran is not competent in that regard. Therefore, the Veteran's self diagnosis of PTSD is not competent evidence and, therefore, does not tend to prove that he has PTSD. For the all the foregoing reasons, the Board concludes that the criteria for service connection for PTSD have not been met. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine, but finds it inapplicable here because the preponderance of the evidence is against the claim. 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for PTSD is denied. REMAND A remand is warranted in light of Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009) to properly develop and determine the nature of the Veteran's other psychiatric disorders. Despite not diagnosing PTSD, the November 2010 examiner diagnosed the Veteran with major depression. The examiner, however, did not explain whether the Veteran's depression was related to the Veteran's service. In Clemons, the claimant filed a claim for benefits for PTSD, which was denied for lack of a current diagnosis of PTSD. Id. at 4. In denying, the Board failed to consider whether the claimant was entitled to benefits for another mental disorder with which he had been previously diagnosed. Id. The U.S. Court of Appeals for Veterans' Claims, explaining that a layperson is generally not competent to provide a medical diagnosis, stated that VA should have construed the PTSD claim based on the reasonable expectations of the non-expert, self-represented claimant and the evidence developed in processing that claim. Id. at 5. Based on the Veteran's currently diagnosed major depression, the Board construes the Veteran's claim for PTSD to encompass a claim for an acquired psychiatric disorder other than PTSD, to include major depression. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a VCAA notice letter with regard to substantiating a claim of entitlement to service connection for an acquired psychiatric disorder other than PTSD, to include major depression. 2. VA must take appropriate steps to contact the Veteran and to request that he identify all VA and non-VA health care providers who have treated him for an acquired psychiatric disorder other than PTSD, to include major depression. Based on his response, the RO/AMC should obtain copies of all treatment documents from any identified treatment source. All records and/or responses received should be associated with the claims file. 3. Return the claims file to the VA psychologist who examined the Veteran in November 2010 to provide another examination and provide an opinion as to whether it is at least as likely as not (i.e. a 50 percent possibility or greater) that any acquired psychiatric disorders other than PTSD, to include major depression, had their onset in-service or are otherwise etiologically related to his active service. If the psychologist who conducted the November 2010 VA examination is no longer available, the Veteran should be afforded an examination by a different examiner that addresses the above question. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). Prior to the examination, the claims folder and a copy of this remand must be made available to the examiner for review of the case. A notation to the effect that this record review took place should be included in the report of the examiner. 4. The Veteran must be given adequate notice of the date and place of the examination. A copy of all notifications, including the address where the notice was sent must be associated with the claims file. The Veteran is to be advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claim. 38 C.F.R. § 3.655. 5. Upon completion of the above, readjudicate the issue of entitlement to service connection for an acquired psychiatric disorder other than PTSD, to include major depression. If the benefit sought is denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, as appropriate. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs