Citation Nr: 1338468 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 11-19 524 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a lung disorder, to include chronic bronchitis. REPRESENTATION Veteran represented by: Allen Gumpenberger, Accredited Agent ATTORNEY FOR THE BOARD Sara Kravitz, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1974 to October 1977. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a December 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which in part denied service connection for PTSD and chronic bronchitis. 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. The issue of service connection for a lung disorder 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 Veteran has not had an acquired psychiatric disorder, to include PTSD, at any time during the pendency of this claim. CONCLUSION OF LAW An acquired psychiatric disorder, 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 FINDING AND CONCLUSION Duties to Notify and Assist In correspondence dated in March 2010, prior to the December 2010 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 March 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. 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 for PTD or any other psychiatric disorder, because there is no competent evidence that the Veteran has a current psychiatric disability, or that any event that could be deemed to be a stressor occurred in service. Thus, remand for a VA psychiatric examination is not necessary. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA psychiatric 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 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." In December 2010, the RO issued a deferred rating decision noting that the Veteran's service treatment records, CAPRI, DD 214, and 201 file were all negative for stressors. The Veteran's service records indicate that his military occupational specialty was as a physical activities specialist. He completed his service at Fort Riley in Kansas. His service records indicate no combat-type duties or assignments. In December 2010, the AMC issued a formal finding of insufficient information for stressor verification purposes documenting the efforts including receipt of the personnel file in October 2010 and review of the claims folder, including the DD 214 and personnel records. The finding noted that the service treatment records were negative for any change in medical condition. The records were negative for any evidence of combat, and the DD 214 showed no record of combat. The AMC also noted there was no award of combat decorations where they could concede an in-service stressor. With respect to the second element needed to establish service connection for PTSD, if it is shown by official service records that a Veteran personally engaged in combat against the enemy, such as by award of combat citations, then the allegation as to the PTSD stressor, alone, would be deemed sufficient evidence of a stressor, provided that it is consistent with the circumstances, conditions, and hardships of his service. No stressor verification would be needed under such circumstances. If, however, the evidence shows that the Veteran did not serve in combat with enemy forces during service, or if there is a determination that the Veteran engaged in combat but the claimed stressor is not related to such combat, there must be independent evidence to corroborate the Veteran's statement as to the occurrence of the claimed stressor. Doran v. Brown, 6 Vet. App. 283, 289 (1994). The Veteran's testimony, by itself, cannot, as a matter of law, establish the occurrence of a non-combat stressor. See Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). In this case, the Veteran is not claiming, nor does the evidence show, that he was engaged in combat with the enemy while in service. Nor does the Veteran allege that he was exposed to an in-service stressor involving the fear of hostile military or terrorist activity. In fact, the Veteran gives no indication of what his stressor actually consists of. Therefore, the Veteran's in-service stressor requires independent verification, which has not been provided, and does not trigger the application of the newly amended regulations in 38 C.F.R. § 3.304(f)(3). While the Veteran has asserted that he has PTSD as a result of service, review of the record reveals the Veteran does not have any current diagnosis of PTSD, nor has he had such a diagnosis at any time during the pendency of this claim. Critically, in April 2010 the Veteran submitted notice response that stated he had enclosed all information that would support his claim. The Board finds probative that the treatment records do not contain a diagnosis of PTSD based on military, or even non-military, stressors rendered pursuant to the DSM-IV. 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 any symptoms he has experienced during and since service. However, 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). 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. REMAND In December 2007, the Veteran was seen at the VA medical center for bronchitis. May 2009 VA medical center treatment reports also contain notations that the Veteran had bronchitis that was improving. The Veteran's service treatment records contain a notation of "early bronchitis" dated in April 1977. The competent evidence of record suggests the Veteran may have a lung disorder that was incurred during a period of active service. In the instant case, there is no VA examination opinion related to service connection for bronchitis. The Board finds that the current evidence of record is insufficient to determine the nature and etiology of the Veteran's claim for service connection for a respiratory disability. A VA examination is necessary to clarify the Veteran's current respiratory diagnosis and to determine the etiology of any diagnosed disorders. 38 C.F.R. § 3.159(c)(4) (2013). In light of the foregoing, the Board finds a remand for an appropriate VA examination and opinion addressing whether bronchitis is related to service, is necessary. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following actions: 1. Arrange for a pulmonologist or another appropriate clinician to examine the Veteran and provide an opinion, with supporting rationale, as to the nature and etiology of any current lung disorder. A report should be prepared and associated with the Veteran's VA claims folder. The examiner should indicate on the examination report that the claims folder was reviewed in conjunction with the examination. The examiner should identify any current diagnosis of record and provide an opinion, with supporting rationale, as to the nature and etiology of the disability. The examiner should specifically determine whether it is as likely as not (a 50 percent or greater probability) that any identified lung disorder, to include chronic bronchitis, is etiologically related to any incident of the Veteran's military service. In doing so, the examiner should consider: The Veteran's service treatment records which contain a notation of early bronchitis in April 1977, and any other related service treatment record notations. The examiner should provide a rationale for any opinion rendered and should attempt to reconcile any contradictory evidence of record, to include the evidence cited above. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resorting to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2011). 2. After completing the requested action, and any additional notification and/or development warranted, the RO/AMC must readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, furnish the Veteran and his representative a supplemental statement of the case (SSOC) and afford an appropriate time period for response before the appeal is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter 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. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs