Citation Nr: 1335338 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 10-16 296 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Layton, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from December 1987 to November 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision by the St. Petersburg, Florida Regional Office (RO) of the Department of Veterans Affairs (VA) which denied service connection for PTSD and breathing problems secondary to nasal trauma. In the February 2009 rating decision, the RO also found that new and material evidence sufficient to reopen previously denied claims for service connection for a bilateral hearing loss disability, tinnitus, and residuals of frostbite had not been submitted. The Veteran submitted a timely notice of disagreement concerning all issues decided in the February 2009 RO decision, and a statement of the case was issued in February 2010. In April 2010, the Veteran submitted VA form 9 and specified that he was only perfecting an appeal regarding the denial of service connection for PTSD. As such, the only issue before the Board at this time is entitlement to service connection for PTSD. In Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the United States Court of Appeals for Veterans Claims (Court) clarified how the Board should analyze claims for psychiatric disorders. As emphasized in Clemons, though a Veteran may only seek service connection for PTSD, his claim "cannot be a claim limited only to that diagnosis, but must rather be considered a claim for any mental disability that may be reasonably encompassed...." Id. In essence, the Court found that a Veteran does not file a claim to receive benefits for a particular psychiatric diagnosis, such as PTSD, that is named on a claims form, but instead makes a general claim for compensation for the affliction posed by the Veteran's mental condition. In this case, as will be discussed in greater detail below, the Veteran has no diagnosis of any psychiatric disability. As such, no recharacterization of the claim is necessary. FINDING OF FACT The preponderance of the evidence does not support a finding that the Veteran has PTSD. CONCLUSION OF LAW PTSD was not incurred in or aggravated by active military service, and may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claims, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the Court held that 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. A VCAA letter dated in June 2008 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(b)(1) (2013); Quartuccio, at 187. The Veteran was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claim. This letter informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. Furthermore, this letter described how appropriate disability ratings and effective dates were assigned. The Board also concludes VA's duty to assist has been satisfied. The Veteran's available service treatment records, VA treatment records, and private medical records are in the file. The Board recognizes that the Veteran's representative has asserted that his service treatment records are incomplete, as they do not contain a copy of his service separation examination, and that additional efforts should be undertaken by VA to ensure that the complete records are associated with the claims file. However, a careful examination of the service treatment records of record shows that towards the end of his service in September 1991, the Veteran indicated on FHT form 200-X21 that he desired that his separation examination be waived. This evidence strongly supports the conclusion that no separation examination report is of record because the Veteran chose not to undergo a separation examination at the conclusion of his active duty service. As there is no other evidence which indicates that the Veteran's service treatment records are incomplete, the Board concludes that all available service treatment records for the Veteran have been associated with the claims file. Additionally, on his VA form 9, the Veteran indicated that he had been receiving treatment for PTSD from the Vet Center in Pensacola for the past year. In an August 2010 letter, the RO asked the Veteran to complete and return a VA form 21-4142 (Authorization and Consent to Release Information to the Department of Veterans Affairs). In December 2010, the RO attempted to contact the Veteran by telephone to ask him to submit the requested release. Later, in a December 2010 letter, the RO again asked the Veteran to submit a release form. The record does not reflect a response from the Veteran to any of these requests for information. While VA has a statutory duty to assist the Veteran in developing evidence pertinent to a claim, the Veteran also has a duty to assist and cooperate with VA in developing evidence; the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); see Hayes v. Brown, 5 Vet. App. 60, 68 (1993) (VA's duty to assist is not a one-way street; if a veteran wishes help, he/she cannot passively wait for it in those circumstances where his/her own actions are essential in obtaining the putative evidence). In light of the efforts of the RO described above, the Board finds that to the extent possible, all relevant records identified by the Veteran as relating to this claim have been obtained. The record contains sufficient evidence to make a decision on the claim. VA has fulfilled its duty to assist. The Board notes that the Veteran has not been scheduled for or provided with a VA examination for the claim of entitlement to service connection for PTSD. However, as will be discussed in greater detail below, the Veteran has not claimed the existence of an in-service PTSD stressor. Consequently, there is no reasonable possibility of substantiating the claim of service connection for PTSD. As such, a VA medical opinion is not warranted. See also Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (distinguishing cases where only a conclusory generalized statement is provided by the Veteran, in which case an examination may not be required). In accordance with Clemons, the Board has considered whether an examination or opinion is necessary to determine whether he may have a psychiatric disorder other than PTSD that was incurred in service. However, as will also be discussed in more detail below, the Board finds that an examination or opinion in this regard is not necessary due to a lack of credible lay or medical evidence of any such disabilities in service or for decades thereafter. In essence, there is no credible lay evidence of symptoms since service, nor is there a competent etiology opinion of record that links the claimed psychiatric disorder to the Veteran's military service. Therefore, a VA examination is not warranted for this claim. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Service Connection Claims A. Law and Regulations In general, applicable laws and regulations state that service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That a condition or injury occurred in service alone is not enough; there must be disability resulting from that condition or injury. See Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Brammer v. Derwinski, 3 Vet. App. 223 (1992). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) . Service connection may also be granted for chronic disabilities, such as psychoses, if such are shown to have been manifested to a compensable degree within one year after the veteran was separated from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). B. PTSD At the outset, the Board notes the record does not establish the Veteran's participation in combat. Thus, the Board finds that the provisions of 38 U.S.C.A. § 1154(b) (West 2002) do not apply. Service connection for post-traumatic stress disorder requires medical evidence diagnosing the condition in accordance with VA regulations; 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. 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d), (f). The Board observes that effective July 12, 2010, the regulations governing adjudication of service connection for posttraumatic stress disorder (PTSD) were liberalized, in certain circumstances, with respect to the evidentiary standard for establishing the required in-service stressor. For cases pending before VA as of that date, the following regulation applies: 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 that 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. For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a Veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the Veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. 38 C.F.R. § 3.304 (f)(3); see 75 Fed. Reg. 39843 (July 13, 2010). As discussed below, the Veteran does not have a current diagnosis of PTSD, nor has he claimed the existence of a stressor at all. The new regulation defines fear of hostile military or terrorist activity to mean that a Veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft. The Board finds that as the Veteran has not claimed that he experienced an such in-service PTSD stressor, this amendment does not apply. The Veteran's service treatment records are negative for any signs, symptoms, or diagnoses of a psychiatric disorder. As noted above, in September 1991, the Veteran specifically waived his right to a separation examination. Post-service private and VA treatment records are also negative for any signs, symptoms, or abnormal findings pertaining to an acquired psychiatric disorder. In the instant case, with regard to the first element required to establish service connection for PTSD, medical evidence of a current diagnosis of PTSD conforming to DSM-IV, the evidence of record reflects that the Veteran does not have a current diagnosis of PTSD. As noted above, although the Veteran has asserted that he received treatment at the Vet Center in Pensacola, Florida, he has not submitted those records. The RO attempted on multiple occasions to get a release from the Veteran in order to obtain the referenced records, but the Veteran did not provide the requested release. The medical evidence of record does not reflect that the Veteran has sought psychiatric treatment at all since leaving active duty. As such, the Veteran does not have a current diagnosis of PTSD, and element (1) required to establish service connection is not met. While the Veteran may be competent to describe sleeplessness, anger, or an inability to get close to others, he is not competent to diagnose a psychiatric disorder in accordance with DSM-IV criteria. To whatever extent the Veteran and/or his representative attempt to assert that the Veteran, in fact, suffers from service-related PTSD, the Board finds that any such assertions provide no basis for allowance of the claim. As indicated above, this claim turns on the fundamental question of whether the Veteran meets the diagnostic criteria for a psychiatric disability, specifically, PTSD-a matter within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As neither the Veteran nor his representative is shown to be other than laypersons without appropriate medical training and expertise, neither is competent to render a probative (persuasive) opinion on such a medical matter. See, e.g., Bostain v. West, 11 Vet. App. 124, 127 (1998). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). The Board further finds that the Veteran has not claimed the existence of an in-service PTSD stressor. In June 2008 and October 2008 letters, the RO requested that the Veteran to submit details surrounding the stressful event(s) which caused his claimed PTSD, and the Veteran did not provide the requested information. Thus, even presuming a current disability, the preponderance of the evidence is against the claim as there is no evidence of a claimed in service stressor. In light of the holding in Clemons, the Board has again considered the possibility that he may have a psychiatric disorder other than PTSD that was incurred in service. However, the Veteran has not alleged the existence of a continuity of specific psychiatric symptoms following his time on active duty. The Board notes that in a June 2008 statement, the Veteran stated that he has "had great difficulty since returning from Iraq"; however, at no time does the record reflect that the Veteran expressed what these great difficulties were. Even if the Board were to very liberally interpret the Veteran's assertions of "great difficulties" to mean the assertion of specific psychiatric symptoms, there is no medical evidence suggesting a relationship between his current claimed symptoms and service. As such, the Board finds that the preponderance of the evidence is against granting service connection for any psychiatric disorder other than PTSD. In summary, the preponderance of the competent, credible, and persuasive evidence establishes that several essential elements for service connection for PTSD are not met, service connection for PTSD cannot be established. For all of the foregoing reasons, the Board finds that service connection for PTSD is not warranted. ORDER Entitlement to service connection for PTSD is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs