Citation Nr: 1342829 Decision Date: 12/26/13 Archive Date: 01/07/14 DOCKET NO. 10-36 555 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for post traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C.L. Krasinski, Counsel INTRODUCTION The Veteran served on active duty from March 1964 to January 1968. He had no service in the Republic of Vietnam. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 decision of the St. Petersburg, Florida, Department of Veterans Affairs (VA) Regional Office (RO), which denied the claim for service connection for PTSD. In August 2013, the Veteran testified at a Travel Board hearing over which the undersigned Acting Veterans Law Judge presided. A transcript of the hearing is associated with the Veteran's claims folder. In evaluating this case, the Board has not only reviewed the Veteran's physical claims file, but has also reviewed the Veteran's file on the "Virtual VA" system to ensure a complete assessment of the evidence. The issues of entitlement to service connection for headaches and sleep impairment were raised at the August 2013 Travel Board hearing. These issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over these issues, and these issues are referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran did not serve in the Republic of Vietnam during the Vietnam era and he did not engage in combat with the enemy. 2. There is no credible supporting evidence that the claimed stressor event occurred. 3. There is no current diagnosis of PTSD in accordance with the American Psychiatric Association Diagnostic and Statistical Manual for Mental Disorders, 4th ed., that is related to a verified stressor event. 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 FINDINGS AND CONCLUSION Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the 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); 38 C.F.R. § 3.159(b). VA 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. The VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The Court of Appeals for Veterans Claims (Court) held that the VCAA notice must include notice that a disability rating and an effective date of the award of benefits will be assigned if service connection was awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In this case, the RO provided a VCAA notice letter to the Veteran in May 2008, July 2008, and October 2008, prior to the initial adjudication of the claim. The letters notified the Veteran of what information and evidence must be submitted to substantiate a claim for service connection to include a claim for service connection for PTSD due to personal assault, as well as what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA. The May 2008 and October 2008 letters asked the Veteran to provide information concerning the claimed in-service stressor event and provided examples of information or evidence that the Veteran could submit in support of his claim. VA has a duty to assist a veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In the present case, the evidence shows that the Veteran's service treatment records are missing and any additional efforts to obtain the records would be futile. Destruction of service medical records does not create a heightened benefit of the doubt, but only a heightened duty on the part of VA to consider the applicability of the benefit of the doubt, to assist the claimant in developing the claim, and to explain its decision. Cromer v. Nicholson, 19 Vet App 215 (2005); Russo v. Brown, 9 Vet. App. 46, 51 (1996). Where service treatment records are missing, VA also has a duty to search alternate sources of service records. Washington v. Nicholson, 19 Vet. App. 362 (2005). The Board finds that VA has met this duty. The NPRC conducted several searches for the missing records. The RO obtained service personnel records. In December 2008, the RO notified the Veteran that his service treatment records were missing; the Veteran had been previously notified of alternative forms of evidence to submit in lieu of the service treatment records. He did not submit any additional information or evidence to corroborate the stressor event in service. VA treatment records from the VA facility in Orlando dated from February 2002 to December 2003, March 2007 to May 2008, and September 2009 to June 2010 are associated with the claims folder. The Veteran submitted private medical records in support of his claim. VA has not afforded the Veteran a medical examination or nexus opinion relating to his claims for service connection. See 38 U.S.C.A. § 5103A(d)(2) and 38 C.F.R. § 3.159(c)(4)(i). See also McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board finds that such a VA examination and medical opinion are not necessary to render a decision under the circumstances of this case. There is no competent and credible evidence of a current diagnosis of the claimed PTSD or current symptoms. There is no competent evidence of a verified stressor event. For this reason, the Board finds that referral of this claim for a VA examination or to obtain a medical opinion would be a useless act. The duty to assist is not invoked, even under McLendon, as here the evidence does not establish a current disability or current symptoms. Because "no reasonable possibility exists that such assistance would aid in substantiating the claim," a remand for further development is not warranted. 38 U.S.C.A. § 5103A(a)(2). In Bryant v. Shinseki, 23 Vet. App. 488, 493-94 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that that the Veterans Law Judge who conducts a Board hearing fulfill duties to (1) fully explain the issues and (2) suggest the submission of evidence that may have been overlooked. At the August 2013 Travel board hearing, the Veteran was assisted by an accredited representative from the Florida Department of Veterans Affairs. The undersigned Acting Veterans Law Judge fully explained the issue and suggested the submission of evidence that may substantiate the claim. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. The Board therefore finds that, consistent with Bryant, the Acting Veterans Law Judge who conducted the hearing complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and that any error provided in notice during the Veteran's hearing constitutes harmless error. For these reasons, the Board finds that the duties to notify and assist the Veteran have been met, so that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002). The Board finds that no reasonable possibility exists that any other assistance would aid in substantiating the claim and VA met its duty to assist the Veteran. Laws and Regulations Service connection will 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. 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 requires competent evidence showing, (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, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); 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 C.F.R. § 3.304(f) (2013). In the case of any veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, campaign, or expedition, the Secretary shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service, satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. Service connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. The reasons for granting or denying service connection in each case shall be recorded in full. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2013). The ordinary meaning of the phrase "engaged in combat with the enemy," as used in 38 U.S.C. § 1154(b), requires that a veteran have participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. The issue of whether any particular set of circumstances constitutes engagement in combat with the enemy for purposes of section 1154(b) must be resolved on a case-by-case basis. See VAOPGCPREC 12-99 (October 18, 1999). 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. 38 C.F.R. § 3.304(f)(3) (2013). In order to grant service connection for PTSD to a non-combat veteran, there must be credible evidence to support the veteran's assertion that the stressful event occurred. A stressor need not be corroborated in every detail. Suozzi v. Brown, 10 Vet. App. 307, 311 (1997). Moreover, a medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressors. Cohen v. Brown, 10 Vet. App. 128, 142 (1997); Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996). 38 C.F.R. § 3.304(f)(3), provides, in pertinent part, that if a PTSD claim is based on in-service personal assault, evidence from sources other than the veteran's service records may corroborate the veteran's account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. 38 C.F.R. § 3.304(f)(3). 38 C.F.R. § 3.304(f)(3) further provides that VA will not deny a PTSD claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than the Veteran's service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. 38 C.F.R. § 3.304(f)(3). In Patton v. West, 12 Vet. App. 272 (1999), the Court held that the special PTSD personal assault letter should be sent to the veteran in claims for service connection for PTSD based on personal assault as provided by VA policy. With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza v. Brown, 7 Vet. App. 498 (1995). 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. § 7105; 38 C.F.R. §§ 3.102, 4.3, 4.7. Analysis: Service connection As the Veteran's service treatment records are unavailable for review, the Board has a heightened duty to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The case law does not establish a heightened "benefit of the doubt," only a heightened duty of the Board to consider the applicability of the benefit of the doubt, to assist the claimant in developing the claim, and to explain its decision when the veteran's service records have been destroyed. See Ussery v. Brown, 8 Vet. App. 64 (1995). Similarly, the case law does not lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the veteran. Russo v. Brown, 9 Vet. App. 46 (1996). While it is unfortunate that the Veteran's service treatment records are unavailable, the appeal will be decided upon the evidence of record, and the Board will not draw a negative inference from the absence of service treatment evidence. As noted above, service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); 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. 38 C.F.R. § 3.304(f). The above cited regulation, 38 C.F.R. § 4.125(a), refers to the DSM-IV as the source of criteria for the diagnosis of claimed psychiatric disorders. DSM-IV provides that a valid diagnosis of PTSD requires that a person has been exposed to a traumatic event in which both of the following were present: (1) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of himself or others, and (2) the person's response involved intense fear, helplessness, or horror. The Veteran asserts that he has PTSD due to a stressor event in which he was beaten up by a group of soldiers. He stated that in June 1966 when aboard the USS John R. Perry, while in the living quarters, he was ambushed, a laundry bag was placed over his head, and he was beaten. He stated that he had injuries to his head and bruises. See the Veteran's statement dated in January 2009 and the Veteran's testimony at the hearing before the Board in August 2013. The service records show that the Veteran served with the U.S. Navy from March 1964 to January 1968. The service records show that the Veteran served on the USS John R. Perry from November 1964 to March 1967. The DD Form 214 indicates that his military occupation was electrician's mate. There is no evidence that the Veteran served in the Republic of Vietnam or engaged in combat with the enemy and he does not allege that he did. The Veteran alleges personal assault. However, he has not submitted any information or evidence to corroborate his contentions that he was assaulted in service. In the May 2008 and October 2008 letters, the RO asked the Veteran to provide specific details of the stressor event and to submit information and evidence about the incident. The RO informed the Veteran of the types of evidence or information he could submit or identify to support the occurrence of the stressor event. However, the Veteran did not submit or identify any additional information or evidence to corroborate that the stressor event occurred. The Board finds that there is no credible supporting evidence that the claimed in-service stressor occurred. The weight of the competent and credible evidence shows that the Veteran does not have a current diagnosis of PTSD. The medical evidence of record does not establish a diagnosis of PTSD or other psychiatric diagnosis. The private medical records and the VA treatment records associated with the claims file do not show a diagnosis of PTSD or any mental health treatment for PTSD or other psychiatric disorder. The VA treatment records do not list PTSD or other psychiatric disorder on the Veteran's problem list. He was not on any medication for PTSD or other psychiatric disorder. A July 2002 VA treatment record indicates that the Veteran denied any anxiety or depression. The private medical records associated with the claims file do not show a diagnosis of PTSD or other psychiatric disorder. An April 2009 private hospital record indicates that the Veteran was admitted in an altered state of mind. Testing revealed a brain tumor. The records indicate that the Veteran denied having a history of depression or anxiety. The Veteran himself asserts that he has PTSD due to the stressor event in service. At the hearing before the Board in August 2013, the Veteran stated that he had "issues" at home, anger issues, and sleep difficulty. He stated that he had nightmares and flashbacks about the incident in service. The Veteran also asserted that his wife told him that he acted out of line and he was acting crazy. The Veteran asserts that he saw three or four psychiatrists at VA and his private doctor told him that his issues were related to the incident in service. See the August 2013 Board hearing transcript, pages 4 to 14. While the Veteran is competent to state that he has observable symptoms, he is not competent to render a medical or psychiatric diagnosis. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis); see also Jones v. West, 12 Vet. App. 383, 385 (1999) (where the determinative issue is one of medical causation or a diagnosis, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue). There is no evidence showing that the Veteran has medical expertise and he is not competent to provide any medical or psychiatric diagnoses or medical opinions. The Board finds that the Veteran's lay statements regarding his PTSD symptoms are not credible. Review of the record shows that the Veteran only reported having such symptoms in connection with his claim for compensation benefits. He reported such symptoms at the Board hearing in August 2013. However, review of the record shows that the Veteran did not report such symptoms at any time in the course of medical treatment and he even denied having symptoms of anxiety or depression. At the hearing before the Board, the Veteran asserted that he had seen psychiatrists at VA and his private doctor related his "issues" to the events in service. However, the VA treatment records do not document any mental health evaluations. The Veteran did not submit or identify the private records from the private doctor who related the Veteran's "issues" to events in service. At the Board hearing, the undersigned Acting Veterans Law Judge advised the Veteran that such evidence was important to substantiate his claim. In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza v. Brown, 7 Vet. App. 498 (1995). In the present case, the Board finds that the Veteran's own lay statements are not credible because the statements were first made in 2008 almost forty years after service separation and were made in connection with his claim for compensation benefits. The lay statements appear to have been made in self-interest and for monetary gain. The Veteran's lay statements are also not consistent with the other evidence of record including the medical evidence of record. The weight of the medical evidence is against the Veteran's lay assertions that he has PTSD. The weight of the evidence shows that the Veteran does not have a diagnosis of PTSD in accordance of DSM-IV. The medical evidence of record does not show a current diagnosis of PTSD or other psychiatric disorder. The Court has held that Congress 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). Without competent evidence of a diagnosed disability, service connection for the disorder cannot be awarded. See Brammer, supra; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004) (holding that service connection requires a showing of current disability); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (holding that a grant of service connection requires that there be a showing of disability at the time of the claim, as opposed to sometime in the distant past). The weight of the evidence shows that the Veteran does not have PTSD or other psychiatric disorder at any point during the claim or appeal period. McClain v. Nicholson, 21 Vet. App. 319 (2007). Accordingly, on this record, the evidence does not show that the Veteran has PTSD or other psychiatric disorder in accordance with DSM-IV that was incurred in or is related to service. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The appeal is denied. ORDER Entitlement to service connection for PTSD is not warranted and the appeal is denied. ____________________________________________ M. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs