Citation Nr: 1339958 Decision Date: 12/04/13 Archive Date: 12/18/13 DOCKET NO. 09-29 506 ) 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 WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Odya-Weis, Associate Counsel INTRODUCTION The Veteran served on active duty from October 2000 to February 2007. This case is before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision of the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA). In connection with this appeal, the Veteran testified at a hearing before the undersigned Veterans Law Judge at the RO in February 2011. A transcript of the hearing is associated with the claims file. When this claim was before the Board in March 2011, it was remanded for additional development and adjudicative action. The case has since been returned to the Board for further appellate action. The record before the Board consists of the Veteran's paper claims file and an electronic file known as Virtual VA. FINDING OF FACT PTSD has not been present during the pendency of the claim. CONCLUSION OF LAW PTSD was not incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that or "immediately after" VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that VA sent the Veteran all required notice in a May 2007 letter, prior to the February 2008 rating decision on appeal. The record also reflects that the Veteran's service treatment records (STRs) and post-service VA medical records have been obtained. Additionally, pursuant to the Board's remand directive, the Veteran was afforded a VA examination in May 2011. The VA examination report reflects that in addition to examining the Veteran, the examiner reviewed the Veteran's pertinent history. The examiner determined that the Veteran does not meet the diagnostic criteria for PTSD and properly supported this conclusion. Therefore, the Board has determined that the examination report is in compliance with the Board's remand directive and is adequate for adjudication purposes. Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the claim; the Board is also unaware of any such evidence. Therefore, the Board is also satisfied that VA has complied with its duty to assist the Veteran. Accordingly, the Board will address the merits of the claim. Legal Criteria Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Generally, entitlement to service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV) as outlined in 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). "Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability . . . in the absence of a proof of present disability there can be no claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Court has held that the requirement for service connection that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior to the Secretary's adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background and Analysis The Veteran asserts that he has PTSD due to his combat service in Iraq. In the May 2011 remand, the Board conceded the Veteran's in-service stressors. The question remains, however, whether the Veteran has PTSD due to those confirmed stressors. The Veteran's service treatment records (STRs) document psychiatric treatment related to an adjustment disorder with depressed mood, partner relationship problem in June 2005. In a May 2007 outpatient psychiatric consultation at a VA Medical Center (VAMC) the Veteran was diagnosed with PTSD and depression not otherwise specified (NOS). Additionally, a January 2008 VA examination report reflects that the Veteran was diagnosed with adjustment disorder with anxiety. The January 2008 VA examiner also stated the Veteran may have met the criteria for a diagnosis of PTSD due to serving two tours in Iraq but that the examination was not performed for the purpose of determining whether the Veteran has PTSD. At the February 2011 hearing before the undersigned, the Veteran discussed his combat stressors in service, including three instances where mortars exploded in close proximity to the Veteran. In 2003, one of the Veteran's friends was a POW and one was killed. The Veteran also reported viewing SCUD attacks on the radar systems that required he stay in protective gear from chemical attacks for 32-38 days. Additionally, the Veteran discussed stress related to his marriage while the two were deployed in different units and stated that the marriage ended in divorce. In March 2011, the Board granted service connection for the Veteran's adjustment disorder and tremors associated with the adjustment disorder. The Board remanded the PTSD claim for an additional VA examination to determine the etiology of any currently present PTSD. In a May 2011 VA PTSD examination, the VA examiner determined that the Veteran did not meet the diagnostic criteria for PTSD or any other psychiatric disorder. The VA examiner opined that "PTSD is not caused by or a result of the veteran's active military service, including stressful combat experiences during his deployment to Iraq," emphasizing that the Veteran agreed to the assessment and stated "I'm passed [sic] all this. It's been a 4-year process," which validated the diagnosis of adjustment disorder with anxiety made as a result of the January 2008 VA examination. The VA examiner noted that the Veteran's symptoms decreased since the January 2008 VA examination, "now limited to occasional episodes of irritability, occasional exaggerated startle, and disrupted sleep." After careful review of the record, the Board finds that the preponderance of the evidence is against the claim. The evidence of record, to include the 2007 VAMC treatment records and May 2011 VA examination report, fails to show that PTSD has been present during the period of this claim. The Board acknowledges that the May 2007 VAMC treatment record included a diagnosis of PTSD. However, the May 2007 record does not identify the elements supporting the diagnosis. The January 2008 VA examiner reviewed the Veteran's pertinent history and examined the Veteran. That examiner determined that the Veteran's symptoms were due to the adjustment disorder for which service connection is in effect. The May 2011 VA examiner also reviewed the Veteran's pertinent history and properly explained why the Veteran does not meet the diagnostic criteria for PTSD. Therefore, the Board has determined that the January 2008 and May 2011 VA examination reports are of greater probative value than the VA outpatient record. Accordingly, this claim must be denied. In reaching this decision the Board has considered the benefit of the doubt doctrine but has determined that it is not applicable to this claim because the preponderance of the evidence is against the claim. ORDER Service connection for PTSD is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs