Citation Nr: 1329372	
Decision Date: 09/13/13    Archive Date: 09/20/13

DOCKET NO.  09-27 536	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, 
Arizona


THE ISSUE

Entitlement to service connection for an acquired 
psychiatric disorder, to include PTSD.  


REPRESENTATION

Appellant represented by:	Arizona Department of Veterans 
Services


ATTORNEY FOR THE BOARD

Timothy D. Rudy, Counsel






INTRODUCTION

The Veteran served on active duty from September 1950 to 
April 1952.  

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a December 2007 rating decision 
issued by the Department of Veterans Affairs (VA) Regional 
Office (RO) in Phoenix, Arizona.  

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).  

The Board notes that recently the United States Court of 
Appeals for Veterans Claims (Court) held that a claimant 
without medical expertise cannot be expected to precisely 
delineate the diagnosis of his mental illness.  Clemons v. 
Shinseki, 23 Vet. App. 1, 4-5 (2009).  As the Veteran filed 
a claim for the affliction his mental condition, whatever 
that is, causes him, VA must construe the claim to include 
any and all of the Veteran's currently diagnosed psychiatric 
disabilities.  Id.  Here, the Veteran filed a claim for 
entitlement to service connection for PTSD, but the medical 
evidence of record indicates that the Veteran also has been 
diagnosed with depression, chronic stress, and an adjustment 
disorder with mixed anxiety and depressed mood.  Therefore, 
the Board has recharacterized the issue on appeal as 
indicated above.  


FINDINGS OF FACT

1.  The evidence of record does not show that the Veteran 
currently has a PTSD diagnosis in accordance with VA 
regulations.  

2.  The evidence of record does not show that the Veteran's 
acquired psychiatric disorder, most recently diagnosed as 
adjustment disorder with mixed anxiety and depressed mood, 
is related to his service.  


CONCLUSION OF LAW

The criteria for service connection for an acquired 
psychiatric disorder, to include PTSD, have not been met.  
38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 
C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 4.125 (2012).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

The provisions of the Veterans Claims Assistance Act of 2000 
(VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 
3.326(a) and as interpreted by the United States Court of 
Appeals for Veterans Claims (the Court), have been fulfilled 
by information provided to the Veteran in letters from the 
RO dated in March 2007, October 2007, and November 2012.  
These letters notified the Veteran of VA's responsibilities 
in obtaining information to assist the Veteran in completing 
his claim, and identified the Veteran's duties in obtaining 
information and evidence to substantiate his claim.  
Thereafter, the claim was adjudicated in an October 2012 
supplemental statement of the case.  (See 38 C.F.R. 
§§ 3.102, 3.156(a), 3.159, 3.326(a); Quartuccio v. Principi, 
16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 
112 (2004).  See also Mayfield v. Nicholson, 19 Vet. App. 
103, 110 (2005), reversed on other grounds, 444 F.3d 1328 
(Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 20 Vet. App. 
473 (2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. 
App. 537 (2006).  

The Court in Dingess/Hartman found that the VCAA notice 
requirements applied to all elements of a claim.  An 
additional notice as to disability ratings and effective 
dates was not provided the Veteran; however, this deficiency 
is not shown to prejudice the Veteran.  Because in the 
decision herein, the Board denies service connection for an 
acquired psychiatric disability, to include PTSD, no 
disability rating or effective date is being, or is to be, 
assigned.  Therefore, there is no possibility of prejudice 
to the Veteran under the notice requirements of 
Dingess/Hartman.  

In any event, the Veteran has neither alleged nor 
demonstrated any prejudice with regard to the content or 
timing of the notices.  See Shinseki v. Sanders, 129 S. Ct. 
1696 (2009) (reversing prior case law imposing a presumption 
of prejudice on any notice deficiency, and clarifying that 
the burden of showing that an error is harmful, or 
prejudicial, normally falls upon the party attacking the 
agency's determination).  In view of the above, the Board 
finds that the notice requirements pertinent to the issue on 
appeal have been met.  

As for the duty to assist, the Board finds that all 
necessary development has been accomplished, and therefore 
appellate review may proceed without prejudice to the 
Veteran.  VA treatment records relevant to the Veteran's 
claim have been requested and obtained and the Veteran was 
provided with a VA mental examination and medical opinion.  

The Board also notes that many of the Veteran's service 
treatment and personnel records are missing from the claims 
file, and presumably were destroyed in a fire at the 
National Personnel Records Center (NPRC) in 1973.  The Board 
is mindful that, in a case such as this, where service 
records are lost or unavailable, there is a heightened 
obligation to explain our findings and conclusions and to 
consider carefully the benefit-of-the-doubt rule.  Cuevas v. 
Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 
1 Vet. App. 365, 367 (1991).  While it is unfortunate that 
many of the Veteran's service treatment and personnel 
records are not available, this appeal must be decided on 
the evidence of record and, where possible, the Board's 
analysis has been undertaken with the heightened obligation 
set forth in Cuevas and O'Hare in mind.  

There has been substantial compliance with all pertinent VA 
laws and regulations.  The Board finds that the available 
medical evidence is sufficient for an adequate determination 
of this claim.  No further notice or assistance is required 
to fulfill VA's duty to assist in the development of a claim 
for benefits.  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).  

Service Connection - Laws and Regulations 

Service connection may be granted for a disability resulting 
from personal injury suffered or disease contracted in line 
of duty or for aggravation of preexisting injury suffered or 
disease contracted in line of duty.  38 U.S.C.A. § 1110 
(West 2002); 38 C.F.R. § 3.303.  

VA regulations provide that where a veteran served 90 days 
or more of continuous, active military service during a 
period of war or after January 1, 1947, and certain chronic 
diseases, including a psychosis, become manifest to a degree 
of 10 percent within one year from date of termination of 
service, such disease shall be presumed to have been 
incurred in service even though there is no evidence of such 
disease during the period of service.  This presumption is 
rebuttable by affirmative evidence to the contrary.  38 
U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. 
§§ 3.307, 3.309.  

In addition, service connection may be granted for any 
disease diagnosed after discharge, when all of the evidence, 
including that pertinent to service, establishes the disease 
was incurred in service.  38 C.F.R. § 3.303(d) (2012).  A 
psychosis is a chronic disease.  38 C.F.R. § 3.309(a) 
(2012); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  
Where the evidence shows a chronic disease in service or 
continuity of symptoms after service, the disease shall be 
presumed to have been incurred in service.  For the showing 
of chronic disease in service, there are required a 
combination of manifestations sufficient to identify a 
disease entity, and sufficient observation to establish 
chronicity at the time.  With chronic disease as such in 
service, subsequent manifestations of the same chronic 
disease at any later date, however remote, are service-
connected, unless clearly attributable to intercurrent 
causes.  If a condition noted during service is not shown to 
be chronic, then generally, a showing of continuity of 
symptoms after service is required for service connection.  
38 C.F.R. § 3.303(b) (2012).  

Generally, in order to prevail on the issue of service 
connection on the merits, there must be (1) medical evidence 
of a current disability; (2) medical, or in certain 
circumstances, lay evidence of in-service incurrence or 
aggravation of a disease or injury; and (3) medical evidence 
of a nexus between the claimed in-service disease or injury 
and the present disease or injury.  Hickson v. West, 12 Vet. 
App. 247, 253 (1999).  The United States Court of Appeals 
for the Federal Circuit has held that a veteran seeking 
disability benefits must establish the existence of a 
disability and a connection between service and the 
disability.  Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 
2000).  

Entitlement to service connection for PTSD also requires 
medical evidence diagnosing the condition in accordance with 
38 C.F.R. § 4.125(a); a link, established by medical 
evidence, between current symptoms and an in-service 
stressor; and credible supporting evidence that the claimed 
in-service stressor occurred.  

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 circumstances, conditions, or hardships 
of the veteran's service, the veteran's lay testimony alone 
may establish the occurrence of the claimed in-service 
stressor.  Id.  

Where, however, VA determines that the veteran did not 
engage in combat with the enemy and was not a POW, or the 
claimed stressor is not related to combat or POW 
experiences, the veteran's lay statements, by themselves, 
generally will be insufficient to establish the occurrence 
of the alleged stressor.  Instead, the record must contain 
service records or other credible evidence corroborating the 
stressor.  See 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. 
§ 3.304(d), (f) (2012); Gaines v. West, 11 Vet. App. 353, 
357-58 (1998).  Such corroborating evidence cannot consist 
solely of after-the-fact medical evidence containing an 
opinion as to a causal relationship between PTSD and 
service.  See Moreau v. Brown, 9 Vet. App. 389, 396 (1996).  

However, regulations revised as of July 2010 no longer 
require the verification of an in-service stressor if the 
veteran was in a location involving "fear of hostile 
military or terrorist activity."  Such a location can be 
evidenced by awards such as the Iraq Campaign Medal or the 
Vietnam Service Medal.  Lay testimony alone can be used to 
establish the occurrence of an in-service stressor in these 
situations.  The new regulatory provision requires that: (1) 
a VA psychiatrist or psychologist, or contract equivalent, 
must confirm that the claimed stressor is adequate to 
support a diagnosis of PTSD; (2) the claimed stressor is 
consistent with the places, types, and circumstances of the 
veteran's service; and (3) the veteran's symptoms are 
related to the claimed stressor.  Id.  

When a condition may be diagnosed by its unique and readily 
identifiable features, the presence of the disorder is not a 
determination "medical in nature" and is capable of lay 
observation.  In such cases, the Board is within its 
province to weigh that testimony and to make a credibility 
determination as to whether that evidence supports a finding 
of service incurrence and continuity of symptomatology 
sufficient to establish service connection.  See Barr v. 
Nicholson, 21 Vet. App. 303 (2007).  

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).  

The Board must assess the credibility and weight of all the 
evidence, including the medical evidence, to determine its 
probative value, accounting for evidence which it finds to 
be persuasive or unpersuasive, and providing reasons for 
rejecting any evidence favorable to the claimant.  See 
Masors v. Derwinski, 2 Vet. App. 181 (1992); Gilbert v. 
Derwinski, 1 Vet. App. 49 (1990).  Equal weight is not 
accorded to each piece of evidence contained in the record; 
every item of evidence does not have the same probative 
value.  

Factual Background and Analysis

The Veteran originally sought service connection for PTSD.  
The Veteran contends that he developed PTSD due to service 
in the Korean War.  In addition, as noted above in the 
Introduction, VA also will adjudicate whether he is entitled 
to service connection for any other acquired psychiatric 
disorder other than PTSD.  See Clemons v. Shinseki, 23 Vet. 
App. 1 (2009).  

Available service personnel records indicate that while in 
Korea the Veteran participated in the First United Nations 
Counter Offensive from March 1951 to April 1951 and in the 
Chinese Communist Forces Spring Offensive from April 1951 to 
December 1951.  They also indicate that he enlisted or 
trained for the infantry.  His DD Form 214 reveals that the 
Veteran received the Korean Service Medal, two Bronze 
Service Stars, and the Japanese Occupation Medal.  

As noted above, most of the Veteran's service treatment 
records are unavailable and presumed missing in a fire at 
the NPRC in 1973.  Available service treatment records show 
that his neuro-psychiatric examination was normal when 
examined for enlistment in June 1950.  He evidenced no 
apparent psychiatric symptoms when examined for active duty 
in August 1950.  Likewise, no psychiatric abnormalities were 
noted at the time of his discharge examination in April 
1952.  On his contemporaneous report of medical history, the 
Veteran checked the "no" boxes when asked whether he ever 
had nightmares, depression or excessive worry, or nervous 
trouble of any sort.  

As noted in the Introduction, VA medical records associated 
with the claims file indicate that the Veteran, in addition 
to PTSD, also has been diagnosed at various times with 
depression, chronic depression, situational depression, and 
chronic stress.  VA treatment records only show a diagnosis 
of PTSD, beginning in September 2006, by a licensed social 
worker.  

According to that September 2006 VA medical record, the 
Veteran told the social worker that while in Korea he was in 
Army aviation as a forward observer and was in 23 combat 
missions in enemy territory.  He also said that he went into 
aviation post-service and spent 45 years in the film 
industry as a stunt pilot, but spent the past 12 years 
driving a dump truck.  

An earlier July 2006 VA medical record had noted that he was 
unemployed, depressed, and in a poor financial situation.  
Diagnosis at that time was depression due to social 
situation.  

A November 2006 VA medical record revealed that the 
Veteran's significant other had telephoned with concerns 
about the Veteran's change in behavior over the past two 
years.  She said that he was increasingly confused and 
forgetful and had increased difficulty focusing on tasks.  
She reported he had six motor vehicle accidents in the past 
two years, that most were his fault resulting from 
inattention and possible physical problems, and that at 75 
he continued to drive a truck for work.  She said that she 
feared both for his safety and that of others.  

According to VA medical records dated in January 2008 and 
August 2008, the Veteran told the VA social worker that he 
was depressed because he was unable to keep a job.  He still 
had nightmares of a soldier who walked into the propeller of 
an airplane when he was in the Army in Korea.  He also said 
that he sometimes thought about walking out into the desert 
to end it all because of the continued stress of trying to 
make ends meet.  

The Veteran underwent a VA mental examination in February 
2012.  The examiner, a VA psychiatrist, after reviewing the 
claims file and examining the Veteran, found that his 
symptoms did not meet the diagnostic criteria for PTSD under 
the DSM-IV criteria in spite of two in-service stressors she 
said were adequate to support a diagnosis of PTSD.  They 
included witnessing a sergeant walk into a propeller and 
"turn to hamburger" in April 1951 and touching and seeing a 
dead Korean soldier on a dark night while working as a 
wireman.  She provided an Axis I diagnosis of adjustment 
disorder with mixed anxiety and depressed mood and an Axis 
III diagnosis of lacunar dementia.  She also noted conflict 
with his primary support.  Symptoms of the adjustment 
disorder included irritable mood, sleep impairment due to 
feeling worried about finances and the health of family 
members, and a transient depressed mood with fleeting 
suicidal ideation (with no plan or intention).  Symptoms of 
the dementia included impairment of memory, attention, and 
concentration.  

The VA examiner noted that the Veteran denied any impairment 
in his activities or relationships with friends and family 
members related to his mental disorder.  She said that he 
described discord with his significant other which 
contributed to his depressed mood.  He also described 
anxiety related to finances and to the health problems of 
children of his significant other.  While the Veteran 
described being anxious every few months when someone walked 
near a propeller and occasional nightmares, she said these 
did not contribute to his current life difficulties.  He 
denied avoiding any activities, had a close friend, 
meaningful hobbies, and worked for many years in a job he 
loved.  She said there was no nexus between his current 
mental disorder and his military service.  

According to a February 2012 letter sent to VA on the 
Veteran's behalf, J.I., a friend of the Veteran for more 
than 35 years, stated that the Veteran had reoccurring 
nightmares when he saw a soldier walk into a running 
propeller.  She said that some of the things he saw and told 
her would drive her crazy and she really did not know how he 
coped.  

Based upon the evidence of record, the Board finds that the 
preponderance of the evidence weighs against the claim for 
service connection for an acquired psychiatric disorder.  
Initially, the Board notes that even though the February 
2012 VA examiner found that the Veteran's two claimed in-
service stressors were adequate to support a diagnosis of 
PTSD, this VA psychiatrist also found that a diagnosis of 
PTSD was not warranted in the Veteran's case.  

The Board finds that the most complete assessment of the 
Veteran's mental condition was made in the February 2012 VA 
examination.  The VA examiner did not diagnose the Veteran 
with PTSD.  The February 2012 VA examiner specifically 
examined the Veteran for PTSD under DSM-IV criteria, but 
found that he did not meet the criteria for a PTSD 
diagnosis.  (The diagnostic criteria for mental disorders 
set forth in the American Psychiatric Association: 
Diagnostic and Statistical Manual of Mental Disorders (4th 
ed. 1994) (DSM-IV) have been adopted by VA.  38 C.F.R. 
§ 4.125.)  

Therefore, the Veteran currently does not have a diagnosis 
of PTSD under the meaning of VA regulations.  Thus, even 
were the Board to find that the Veteran participated in 
combat while stationed in Korea or note how the VA examiner 
found that both of his two claimed in-service stressors were 
related to his fear of hostile military or terrorist 
activity, it still could not grant service connection for 
PTSD because there is no current medical diagnosis of PTSD 
under the standards of the DSM-IV.  

Overall, the Board finds that the preponderance of the 
competent medical evidence of record does not indicate that 
the Veteran has a current DSM-IV diagnosis of PTSD to 
warrant service connection in this case.  The Board notes 
that the VA examination report is the only evaluation of 
record conducted in accordance with DSM-IV that provided a 
medical opinion with regards to PTSD.  Though VA clinical 
records show that the Veteran has been diagnosed in the 
recent past with PTSD, the Board notes that none of these 
clinical records also associated with the claims file show a 
diagnosis of PTSD based on an explained link between current 
symptomatology and one of the Veteran's two in-service Korea 
stressors.  See 38 C.F.R. §§ 3.304(f); 4.125.  

Thus, the February 2012 VA mental examination report is 
found to be of great probative value.  Simply put, in the 
absence of a present PTSD disability, a grant of service 
connection for PTSD is clearly not supportable.  See Brammer 
v. Derwinski, 3 Vet. App. 223, 225 (1992) (noting grant of 
service connection requires claimant have a current existing 
disability).  Thus, the Board need not reach the question of 
whether any of the Veteran's claimed in-service stressors 
have been corroborated, or are related to combat, or to the 
fear of hostile military or terrorist activity.  

Further, a review of the competent evidence of record does 
not show that service connection is warranted in this case 
for any other acquired psychiatric disorder other than PTSD.  
There is no diagnosis of an acquired psychiatric disorder in 
service, or a diagnosed psychosis within one year of 
service.  Therefore, service connection on a presumptive 
basis is not available.  See 38 C.F.R. §§ 3.307, 3.309.  

The February 2012 VA examiner diagnosed an adjustment 
disorder with mixed anxiety and depressed mood, but opined 
this was not related to military service.  There is no 
medical opinion to the contrary found in the claims file.  
Since there is no evidence of in-service incurrence or 
aggravation of any mental disorder while in service and no 
medical evidence of a nexus between service and his 
currently diagnosed mental disorder, service connection is 
not warranted for a psychiatric disorder other than PTSD.  
See Hickson, 12 Vet. App. at 253.  

In addition, the Veteran was not treated for psychological 
complaints for many years between the time of his discharge 
from active duty in 1952 and the first documented 
indications in available medical records of a psychiatric 
evaluation in 2006.  The passage of many years between 
discharge from active service and the medical documentation 
of a claimed disability is a factor that tends to weigh 
against a claim for service connection.  See Maxson v. 
Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).  

Moreover, the Veteran has not submitted any competent 
medical evidence that any diagnosed psychiatric disorder is 
related to his military service or that he currently has 
been diagnosed with a psychiatric disorder that is related 
to military service.  See Wray v. Brown, 7 Vet. App. 488, 
492-93 (1995).  

In addition to the medical evidence, the Board also has 
considered the Veteran's statements that he has an acquired 
psychiatric disorder related to his military service.  In 
this regard, the Board finds the Veteran's statements as to 
current symptomatology and to his two in-service stressors 
competent and credible.  However, these statements are not 
persuasive.  

A veteran's lay statements may be competent to support a 
claim for service connection where the events or the 
presence of disability or symptoms of a disability are 
subject to lay observation.  38 U.S.C.A. § 1153(a); 38 
C.F.R. §§ 3.303(a), 3.159(a); Jandreau v. Nicholson, 492 
F.3d. 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 
1331 (2006).  However, a psychiatric disorder is not a 
disability subject to lay opinions as to diagnosis and 
etiology.  While some symptoms of a psychiatric disorder, 
such as sleep impairment, may be reported by a layperson, 
the diagnosis and etiology of the disorder require medical 
training.  The Veteran does not have the medical expertise 
to diagnose himself with an acquired psychiatric disorder, 
nor does he have the medical expertise to provide an opinion 
regarding its etiology.  Thus, the Veteran's lay assertions 
as to the etiology of any claimed psychiatric disorder are 
not competent or sufficient in this instance.  Jandreau v. 
Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  

Given the medical evidence against the claim, for the Board 
to conclude that the Veteran has an acquired psychiatric 
disorder, to include PTSD, as a result of his military 
service would be speculation, and the law provides that 
service connection may not be based on a resort to 
speculation or remote possibility.  38 C.F.R. § 3.102 
(2009); Obert v. Brown, 5 Vet. App. 30, 33 (1993).  

The Board notes that when there is an approximate balance of 
positive and negative evidence regarding any issue material 
to the determination of a matter, the benefit of the doubt 
will be given to the claimant.  38 U.S.C.A. § 5107(b); 38 
C.F.R. § 3.102.  In reaching this conclusion regarding the 
Veteran's claim, the Board has considered the applicability 
of the benefit-of-the-doubt doctrine.  Because the evidence 
here is not in equipoise, and, in fact, the absence of 
evidence to support the claim suggests that the 
preponderance of the evidence is against the Veteran's 
claim, the benefit-of-the-doubt doctrine is not applicable.  
See Gilbert, 1 Vet. App. at 55-57.  As there is simply no 
basis upon which to grant the Veteran's claim, the appeal is 
denied.  


ORDER

Service connection for an acquired psychiatric disorder, to 
include PTSD, is denied.  



____________________________________________
F. JUDGE FLOWERS
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs