Citation Nr: 1408024 Decision Date: 02/25/14 Archive Date: 03/07/14 DOCKET NO. 11-33 102 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to service connection for posttraumatic stress disorder. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Y. Curtis, Associate Counsel INTRODUCTION The Veteran, who is the Appellant, served on active duty from January 1968 to September 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in February 2011 of a Department of Veterans Affairs (VA) Regional Office (RO). In July 2012, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the Veteran's file. FINDING OF FACT At the time the Veteran filed the current claim or during the pendency of the appeal, posttraumatic stress disorder has not been diagnosed. CONCLUSION OF LAW Posttraumatic stress disorder was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.304(f) (2013). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a), VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran was provided with pre-adjudication VCAA notice by letter dated in June 2010. The Veteran was notified of the evidence needed to substantiate a claim of service connection; namely, evidence of an injury or disease or event, causing an injury or disease, during service; evidence of current disability; and evidence of a relationship between the current disability and the injury or disease or event, causing an injury or disease, during service. In addition, the Veteran was notified that VA would obtain service records, VA records, and records of other Federal agencies, and that she could submit other records not in the custody of a Federal agency such as private medical records, or with her authorization VA would obtain any non-Federal records on her behalf. The VCAA notice included the provisions for the effective date of a claim and for the degree of disability assignable. As for the content and the timing of the VCAA notice, the document complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); Charles v. Principi, 16 Vet. App. 370 (2002) (identifying the document that satisfies VCAA notice); Pelegrini v. Principi, 18 Vet. App. 112 (2004) (pre-adjudication VCAA notice); and Dingess v. Nicholson, 19 Vet. App. 473 (2006)(notice of the elements of the claim). Duty to Assist On the claim of service connection, under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO obtained the service records and VA records. The Veteran was afforded a VA examination 0in January 2011. As the examination report is based on a review of the Veteran's history and described the current findings in sufficient detail so that the Board's review is a fully informed one, the examination report is adequate to decide the claim. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); 38 C.F.R. § 3.159(c) (4). In February 2011, the Veteran argued that the VA examination was inadequate because the examiner appeared more concerned about the way the Veteran dressed than what the Veteran had to say about the in-service stressors or symptoms. As for the in-service stressors, it is not disputed that the Veteran was awarded the combat infantryman badge and that the Veteran's best friend in his unit was killed in action, which were acknowledged by the VA examiner and cited by the VA examiner as meeting the criterion for a stressor under DSM-IV. Also, the VA examiner provided a detailed account of the Veteran's symptoms. While the Veteran may have perceived the VA examiner as unfocused, this does not make the examination inadequate and a reexamination is not warranted. As there is no indication of the existence of additional evidence to substantiate the claim, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. REASONS AND BASES FOR FINDING AND CONCLUSION Principles of Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110. To establish direct service connection, the evidence must show: (1) a current disability; (2) an in-service incurrence of the disability; and (3) a causal relationship between the disability and service, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). Service connection may also be granted for a disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for posttraumatic stress disorder requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), that is, a diagnosis that conforms to the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor actually occurred. 38 C.F.R. § 3.304(f). Evidentiary Standards VA must give due consideration to all pertinent medical and lay evidence in a case where a Veteran is seeking service connection. 38 U.S.C.A. § 1154(a). As the Veteran was awarded the combat infantryman, the provisions of 38 U.S.C.A. § 1154(b) apply. Under 38 U.S.C.A. § 1154(b), as the Veteran was in combat, VA 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. So long as the evidence is consistent with the circumstances, conditions or hardships of such service, the fact that there is no official record of such incurrence or aggravation in such service is of no consequence. 38 U.S.C.A. § 1154(b). The presumption afforded under 38 U.S.C.A. § 1154(b) deals only with the question of whether a particular disease or injury was occurred in service, that is, what happened then, and not the question of either current disability or nexus to service, as to both of which competent evidence is required. Stated differently, evidence of a current disability and a nexus to service is still required to establish service connection. Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996). Competency is a legal concept in determining whether medical or lay evidence may be considered, in other words, whether the evidence is admissible. Competency is a question of fact, which is to be addressed by the Board. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). Competency is distinguished from the weight and credibility of admissible evidence, which are factual determinations going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). When the evidence is admissible, the Board must then determine whether the evidence is credible. "Credible evidence" is that which is plausible or capable of being believed. See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance). If the evidence is credible, the Board, as fact finder, must determine the probative value or weight of the admissible evidence, that is, does the evidence tend to prove a material fact. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). If the evidence is not credible, the evidence has no probative value. 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 Veteran. 38 U.S.C.A. § 5107(b). Evidence The service treatment records contain no complaint, finding, history, treatment, or diagnosis of posttraumatic stress disorder. On separation examination, the psychiatric was normal and the Veteran denied a history of frequent nightmares, depression, or nervous troubles. After service, VA records show that in January 2008 and April 2009 screening tests for posttraumatic stress disorder were negative. On VA examination in January 2011, the Veteran denied military themed nightmares, but he did express trouble sleeping. He stated that that sometimes reminders of Vietnam bother him, but he did not go out of his way to avoid them. The Veteran stated that although his combat experience and the loss of his friend combat in Vietnam were painful, he wanted to preserve the memories. It was noted that the Veteran remained active in Vietnam Veteran reunions and he had visited the gravesite of his combat buddy. The Veteran stated that he enjoyed a good relationship with his spouse and two sons. He denied any problem with domestic violence. It was noted that the Veteran was the primary caregiver of his mother, which was stressful. His father was in a nursing home. The Veteran stated that he did not socialize much, because of family demands and he disliked being around others who drank and smoked. He stated that in public he felt leery of other people, especially in crowds, and that he liked to sit with his back to the wall. The Veteran stated that he retired from the railroad in 2007 and except for his period of service he had been with the railroad since 1965. As for military service, it was noted that the Veteran was a light weapons infantryman with airborne and pathfinder training, who served in combat in Vietnam and the Veteran had been awarded the combat infantryman badge. On mental status evaluation, the Veteran was described as neatly groomed. The VA examiner noted that the Veteran was tearful when describing the death of a close army buddy who died in 1989. The Veteran was cooperative, friendly, and relaxed. His affect was normal and his mood was good. He was oriented. His thought process was unremarkable. There was no complaint of delusions, hallucinations, inappropriate behavior, panic attacks, poor impulse control, obsessive or ritualistic behavior, episodes of violence, or suicidal or homicidal ideation. Remote and recent memory were normal. As for stressors, the Veteran identified his combat experience in Vietnam and the death of his friend in a mortar attack in combat. The VA examiner found no evidence of persistent avoidance of stimuli with the in-service stressors, or persistently re-experiencing the stressors, or clinically significant distress or impairment of in social, occupational, or important areas of functioning. The Veteran did have symptoms of difficulty sleeping, hypervigilance, and exaggerated startle response. Also the Veteran expressed guilt about not visiting the parents of his friend, who was killed in Vietnam, and he grieved about the death of another close army friend from Vietnam. The VA examiner concluded that the Veteran did meet the DSM-IV criterion for a stressor, namely, combat in Vietnam and the loss of a friend in combat, but the Veteran did not meet the DSM-IV criteria for a diagnosis of posttraumatic stress disorder. The VA examiner explained that while the Veteran has painful memories associated with combat in Vietnam and the loss of a friend in combat the Veteran did not engage in significant avoidance strategies, rather the Veteran sought to preserve the memories and the Veteran remained active in reunions of Vietnam Veterans. The VA examiner expressed the opinion that the Veteran was not suffering from posttraumatic stress disorder or any other mental disorder. The VA examiner stated that although the Veteran does have persistent thoughts of his military experience the thoughts are not overly distressing or intrusive to the degree of causing [occupational or social] impairment. In July 2012, the Veteran testified that he awakes at night to check his surroundings, he experiences flashbacks, and that he suffers from short-term memory problems. Analysis The Veteran asserts that he has posttraumatic stress disorder as a result of his combat experiences in Vietnam and the loss of a friend in combat. The record shows that the Veteran was awarded the combat infantryman badge and the death of the Veteran's friend in combat in Vietnam is corroborated by credible supporting evidence. On VA examination, the VA examiner concluded that the Veteran did meet the DSM-IV criterion for a stressor, namely, combat in Vietnam and the loss of a friend in combat. While there is credible evidence that the claimed in-service stressors actually occurred, service connection for posttraumatic stress disorder still requires medical evidence diagnosing posttraumatic stress disorder in accordance with 38 C.F.R. § 4.125(a), that is, a diagnosis that conforms to the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV); and a link, established by medical evidence, between current symptoms and an in-service stressor. 38 C.F.R. § 3.304(f). All three elements must be proved. As for a current diagnosis of posttraumatic stress disorder, on the basis of the service treatment records, posttraumatic stress disorder was not affirmatively shown during service and service connection under 38 U.S.C.A. § 1110 and 38 C.F.R. § 3.303(a) is not established. Posttraumatic stress disorder is not a chronic disease under 38 C.F.R. § 3.309, and the principles of service connection pertaining to chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b) and presumptive service connection as a chronic disease under 38 C.F.R. § 1112 do not apply. See Walker v. Shinseki, 708 F.3d (Fed. Cir. 2013) (The continuity of symptomatology avenue to service connection under regulation creating presumption of service connection for chronic diseases manifesting during service and then again at any later date is available only for chronic diseases enumerated in the only regulation listing named chronic diseases. 38 C.F.R. §§ 3.303(b) , 3.309(a)). As for service connection for a disability diagnosed after discharge under 38 C.F.R. § 3.303(d), the Veteran is competent to describe symptoms of posttraumatic stress disorder. 38 C.F.R. § 3.159 (Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person). See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge, personal knowledge is that which comes to the witness through the use of the senses; lay testimony is competent only so long as it is within the knowledge and personal observations of the witness). The Veteran as a lay person is also competent to identify a simple medical condition, that is, one capable of lay observation, or to describe a contemporaneous medical diagnosis, or to describe symptoms that later support a diagnosis by a medical professional. Jandreau, at 1377. The Veteran as a lay person is also competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Under 38 C.F.R. § 4.125, the diagnosis of posttraumatic stress disorder must conform to the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), which requires medical evidence diagnosing the condition. Stated differently, posttraumatic stress disorder is not a simple medical condition, that is, a condition capable of lay observation, that the Veteran can identify as a lay person. And posttraumatic stress disorder is not a type of condition under case law that has been found to be capable of lay observation. See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) (it is generally the province of medical professionals to diagnose or label a mental condition). As posttraumatic stress disorder is not capable of lay observation under 38 C.F.R. § 4.125 or by case law, posttraumatic stress disorder is not a simple medical condition. And no factual foundation has been established to show that the Veteran is otherwise qualified through specialized education, training, or experience to diagnose posttraumatic stress disorder. Where, as here, there is a question of the diagnosis of posttraumatic stress disorder, which is not capable of lay observation under 38 C.F.R. § 4.125 or by case law , to the extent the Veteran's lay statements and testimony are offered as proof of the presence of posttraumatic stress disorder in service or service, the Veteran's lay statements and testimony are not competent evidence, and the Veteran's lay statements and testimony are not admissible as evidence, that is, the Veteran's lay statements and testimony are not to be considered as competent evidence that posttraumatic stress disorder was present in service or since service and the lay evidence cannot be considered as evidence favorable to the claim. As for Veteran's assertion that posttraumatic stress disorder is related to service, which is an expression of a causal relationship, the statement is an inference based on facts, that is an opinion, rather than a statement of fact. As previously explained, posttraumatic stress disorder is not capable of lay observation, that is, a simple medical condition under 38 C.F.R. § 4.125 or by case law and any inference based on what is not personally observable cannot be competent lay evidence. And no factual foundation has been established to show that the Veteran is otherwise qualified through specialized education, training, or experience to offer an opinion on the causal relationship or nexus between posttraumatic stress disorder and service. For these reasons, the Veteran's lay opinion is not competent evidence. Since the Veteran's lay opinion is not competent evidence, the lay opinion is excluded, that is, not admissible as evidence and cannot be considered as competent lay evidence favorable to claim and as the evidence is not admissible, the Board need not reach the credibility under 38 C.F.R. § 3.303(d) . As for Veteran describing a contemporaneous medical diagnosis, there is no such evidence. As for the Veteran describing symptoms that later support a diagnosis by a medical professional, competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis or medical opinion. 38 C.F.R. § 3.159. The Veteran has not submitted any medical evidence of a diagnosis of posttraumatic stress disorder. The competent medical evidence, that is, evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis or opinion, consists of the report of VA examination by a clinical psychologist, who is qualified through education, training, or experience to offer a medical diagnosis or opinion. Although the VA examiner concluded that the Veteran did meet the DSM-IV criterion for a stressor, namely, combat in Vietnam and the loss of a friend in combat, the Veteran did not meet the DSM-IV criteria for a diagnosis of posttraumatic stress disorder, because the Veteran's symptoms of painful memories associated with combat in Vietnam and the loss of a friend in combat the Veteran, persistent thoughts of the military experience, difficulty sleeping, hypervigilance, exaggerated startle response, and guilt feelings did not result in clinically significant distress or impairment in social, occupational, or other import areas functioning, which is part of the criteria for the diagnosis of posttraumatic stress disorder under DSM-IV. As the medical evidence opposes rather than supports the claim and as there is no contrary favorable medical evidence of a diagnosis of posttraumatic stress disorder based on the credible evidence of a combat stressor, the preponderance of the evidence is against the claim and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). (The Order follows on the next page.). ORDER Service connection for posttraumatic stress disorder is denied. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs