Citation Nr: 1333196 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 10-40 363 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD). ATTORNEY FOR THE BOARD Jacob Dworkin, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1965 to February 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. On a hearing confirmation worksheet signed and dated by the Veteran on May 2013, the Veteran indicated that he wanted to withdraw his hearing request and have his records forwarded to the Board for consideration of his appeal based on the evidence already of record. In a letter received in October 2010, the Veteran stated that he "wished to end the appeal." However, the Veteran continued to argue his case in that same communication, and submitted a subsequent letter with evidence. The Board does not interpret that request from the Veteran to be an effective withdrawal of his appeal. Therefore, the Board finds that the Veteran did not withdraw his appeal and the issue of entitlement to service connection for a psychiatric disability, to include PTSD, is before the Board. FINDING OF FACT The evidence of record does not show that the Veteran has had PTSD or any other psychiatric disability at an time during or contemporaneous to the appeal period. CONCLUSION OF LAW The criteria for service connection for a psychiatric disability, to include PTSD, have not been met. 38 U.S.C.A. § 1110, § 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2013); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in a letter sent in July 2009. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing an error is harmful or prejudicial falls on party attacking agency decision); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the Veteran suggest actual knowledge of the elements necessary to substantiate the claim. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has obtained an examination with respect to the claim in August 2010. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection The Veteran contends that during service he was exposed to mortar fire, being out on post, and going outside the fence of his assigned airbase to check for blood trails in Vietnam and that has caused PTSD. He claims that he is entitled to service connection for PTSD. However, after reviewing all of the relevant evidence of record, the Board concludes that the preponderance of the evidence is against finding that the Veteran has, or has ever had, PTSD. Therefore, the claim is denied. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2013). To establish entitlement to service-connected compensation benefits, 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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). There are particular requirements for establishing service connection for PTSD. Establishing service connection for PTSD requires (1) a current medical diagnosis of PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in-service stressor. 38 C.F.R. § 3.304(f). The diagnosis of PTSD must comply with the criteria set forth in the Diagnostic and Statistical Manual of Mental Disorders, 4th edition, of the American Psychiatric Association (DSM- IV). 38 C.F.R. §§ 3.304(f), 4.125(a) (2013). At an August 2010 VA examination, the examiner documented the Veteran's description of his psychiatric symptoms, and included in the report a detailed summary of the Veteran's relevant history. The examiner opined that the Veteran did not meet the DSM-IV criteria for PTSD. Although the Veteran reported a few transient symptoms, the examiner concluded that those symptoms did not constitute any psychiatric disability, to included PTSD. The examiner did not diagnose the Veteran with any psychiatric disability and the record is absent of the Veteran ever being treated for any other psychiatric condition. Also considered by the Board are the opinions of the Veteran and his spouse that the Veteran has symptoms of a psychiatric disability. There is no evidence that either has expertise in medical matters. Therefore, they are found to be laypersons. Whether a layperson is competent to provide a diagnosis depends on the facts of the case. One factor in making this determination is the complexity of the diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Another factor is whether rendering the diagnosis is within the realm of knowledge of a layperson, such that the diagnosis can be made by observation using the five senses. Layno v. Brown, 6 Vet. App. 465 (1994). For VA purposes, psychiatric disabilities must be diagnosed by applying specialized knowledge and application of DSM-IV. That leads the Board to the conclusion that diagnosing a psychiatric disability, to include PTSD, requires medical expertise and that the Veteran and his spouse's diagnoses are not competent evidence. Furthermore, the pertinent regulation requires medical evidence of PTSD. 38 C.F.R. 3.304(f) (2013). All medical evidence in this case shows that the Veteran does not have PTSD or any other psychiatric disability. The Board finds that the VA examination is the most probative evidence of record as to whether the Veteran has PTSD or any other psychiatric disability, and is more persuasive than the lay assertions. There is no competent evidence of record showing that the Veteran has had a psychiatric disability at any time during or contemporaneous to the appeal period. The Veteran has not submitted any contrary competent evidence that demonstrates that he has a psychiatric disability and has not informed VA that such evidence exists. Therefore, his appeal must be denied. In the absence of evidence showing the presence of a current disability, service connection cannot be granted. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013); McClain v. Nicholson, 21 Vet. App. 319 (2007); Brammer v. Derwinski, 3 Vet. App. 223 (1992). Accordingly, the Board finds that the preponderance of evidence is against a finding that the Veteran has any psychiatric disability, to include PTSD, or that any current psychiatric disability had onset during or was caused by his active service. The evidence does not show that the Veteran has every been diagnosed with a psychosis, so presumptive service connection is not warranted. 38 C.F.R. §§ 3.307, 3.309 (2013). Therefore, the appeal must be denied. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.304(f) (2013); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a psychiatric disability, to include PTSD, is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs