Citation Nr: 1336313 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 12-04 879 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Sara Kravitz, Associate Counsel INTRODUCTION The Veteran served on active duty from May 2001 to June 2005. This case comes before the Board of Veterans' Appeals (the Board) on appeal from an August 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied service connection for PTSD. The Board notes that the Veteran's specific claim related to service connection for PTSD. A United States Court of Appeals for Veterans Claims (Court) decision has held that a veteran, who is a lay person, is not competent to diagnose his specific psychiatric disability. Therefore, VA must consider whether the Veteran's psychiatric symptoms, regardless of the label attached to them, warrant service connection. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Accordingly, the Board has recharacterized the issues as service connection for an acquired psychiatric disability, to include PTSD. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file to date reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal that the Board is adjudicating in this decision. FINDING OF FACT The weight of the competent evidence of record does not demonstrate that the Veteran has and acquired psychiatric disorder, to include PTSD. CONCLUSION OF LAW An acquired psychiatric disability, to include PTSD, was not incurred in or aggravated by military service. 138 U.S.C.A. §§ 1110, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 4.125 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist In correspondence dated in December 2010, prior to the August 2011 rating decision, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2013). Specifically, the RO notified the Veteran of: information and evidence necessary to substantiate the claim; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. The December 2010 letter also notified the Veteran of the process by which initial disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103(A) (West 2002) and 38 C.F.R. § 3.159(c) (2013). All identified and available treatment records have been secured. The Veteran's service treatment records and post-service medical records are in the claims folder. The Veteran was afforded an examination in January 2011. The Veteran contends that his symptoms have worsened since his examination. The report of this examination reflects that the examiner reviewed the Veteran's past medical history, including his claims file, recorded his current complaints, conducted an appropriate interview examination, and rendered an appropriate diagnosis and opinion consistent with the remainder of the evidence of record. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disability compensation (service connection) claims, the VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. Simply stated, the standards of McLendon are not met in this case, because there is no competent evidence that the Veteran has a current disability. Although the Veteran has argued that his symptoms have worsened, that does not equate to competent evidence of a current disability in the face of a prior competent opinion to the contrary. Thus, remand for a VA examination is not necessary. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4) (2013); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Additionally, the Veteran declined to present testimony in support of his claim. Thus, the duties to notify and assist have been met. Analysis - PTSD The Veteran essentially contends that he developed PTSD as a result of service in Iraq, where his fellow combat men were killed. In order to establish service connection for an acquired psychiatric disorder, not including PTSD, there must be (1) 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) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection for PTSD requires: (1) medical evidence diagnosing PTSD (the provisions of 38 C.F.R. § 4.125(a) require that a diagnosis of a mental disorder conform to the Diagnostic and Statistical Manual, Fourth Edition (DSM-IV)); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f) (2013); see Cohen v. Brown, 10 Vet. App. 128 (1997). Section 4.125(a) of 38 C.F.R. requires that diagnoses of mental disorders conform to the DSM-IV and that if a diagnosis is not supported by the findings on the examination report, the rating agency shall return the report to the examiner to substantiate the diagnosis. Effective July13, 2010, VA has amended its rules for adjudicating PTSD claims under 38 CFR § 3.304(f) to relax the evidentiary standard for establishing the required in-service stressor in certain cases. 38 C.F.R. § 3.304(f) previously only authorized VA to accept statements from Veterans who served in combat, as denoted by combat-related awards or decorations or other evidence sufficient to establish participation in combat, and former Prisoners-of-War, as sufficient to establish the occurrence of the claimed in-service stressor. The recent amendment of 38 CFR § 3.304(f), however, eliminates the requirement for corroborating evidence of the claimed in-service stressor if it is related to the Veteran's "fear of hostile military or terrorist activity." The critical threshold issue with regard to the specific claim of an acquired psychiatric disorder, to include PTSD is whether the Veteran has a current diagnosis of an acquired psychiatric disorder, to include PTSD. The Veteran was afforded a VA examination in January 2011. The Veteran stated during the examination that he chose to file a claim for PTSD based on the encouragement of a friend, who told him to file to see if he met the criteria even though the Veteran told his friend "I don't have any of those things that you are describing." The examiner conducted a clinical interview, and reviewed the computer files and the claims file. The Veteran described routine combat stressors, stating that he dealt with lack of a schedule or information, no standard living items, roadside bombs going off, and patrolling with fear of getting blown up, or ambushed. He did not sustain any combat wounds. He specifically described an ambush orchestrated by an Iraqi city in April 2004 where service members were killed, but he was only present for clean up after, not during the actual event. The second event the Veteran described was a search operation, also in April 2004. He described shooting Iraqis, throwing grenades, and using a rocket. He also took his friend's gun who later died, and said he didn't have emotions about his friend dying. The Veteran also described finding out a four man team was shot execution style in June 2004. He stated he had "no emotion" or numbness with the April events. With the June event he reported feeling anxious, angry, and helpless. However, he stated he had wanted to be in the military and thought it would be honorable to die in combat so he was not fearful during his time in the military. The Veteran mentioned current symptoms of recurrent intrusive images, intense distress at exposure to cues, and physiological reactivity. He also mentioned feelings of detachment and diminished interest, as well as difficulty concentrating and hypervigilance. The Veteran described a good relationship with his children, with his family being his main form of social support. He rated his mood as non-depressed. He stated he was not usually anxious unless he had a nightmare. He claimed his symptoms began shortly after leaving the military but worsened six months before the exam, after running into old friends. He reported no changes in psychosocial functioning status or quality of life for employment/school, self-care, family, and recreation. The examiner opined that while the Veteran did have a number of categorical PTSD symptoms required to meet symptom criteria for PTSD, the Veteran reported multiple times that he did not experience clinically significant distress or impairment in important areas of functioning. The examiner stated that without clinically significant distress or impairment the Veteran did not meet the full criteria for PTSD. Also, the examiner noted that the Veteran denied that the stressors he described were related to his fear of hostile military activity. Therefore, the examiner found that the Veteran's claimed stressors were not related to the Veteran's fear of hostile or military activity and that his symptoms were less likely as not caused by or a result of PTSD. Upon evaluation of the Veteran, the VA examiner January 2011 specifically determined that the Veteran did not meet the DSM criteria for an Axis I diagnosis. The Board finds this opinion probative as it was definitive, based upon a complete review of the Veteran's entire claims file, evaluation of the Veteran, and supported by rationale. Accordingly, the opinion is found to carry significant weight. Among the factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). As to the Veteran's contentions that he has a current acquired psychiatric diagnosis, specifically PTSD, the Board acknowledges that the Veteran is competent to testify as to symptoms he has experienced during and since service. However, to the degree that such symptomatology satisfies the criteria for a diagnosed psychiatric disorder or is related to a current psychiatric disorder, the Board places far greater weight on the opinion of the January 2011 VA examiner's report. There is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render a diagnosis of PTSD. See 38 C.F.R. § 3.159 (a)(1) (2013) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). While the Veteran is competent to report what he has experienced, he is not competent to diagnosis PTSD. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); Layno v. Brown, 6 Vet. App. 465 (1994). Furthermore, the Veteran's lay statements that his mental condition has drastically deteriorated and that he was, "suffering from much more severe and debilitating symptoms" did not offer any specifics as to how these symptoms impaired his level of functioning. In this circumstance, the Board gives more credence and weight to the VA examiner's opinion as it was rendered after an extensive evaluation of the Veteran and review of the Veteran's medical history by a licensed psychologist. Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. "In the absence of proof of a present disability, there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). For this reason, the Board finds that the criteria for service connection for an acquired psychiatric disorder, including PTSD, is accordingly not met. ORDER Service connection for an acquired psychiatric disorder, to include PTSD, is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs