Citation Nr: 1607717 Decision Date: 02/29/16 Archive Date: 03/04/16 DOCKET NO. 14-24 317A ) 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 ATTORNEY FOR THE BOARD A. Odya-Weis, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1972 to September 1975. This case is before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision of the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA). In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the U. S. Court of Appeals for Veterans Claims (Court) found that an appellant's claim for service connection for posttraumatic stress disorder (PTSD) should have been construed more broadly by VA as a claim for service connection for any mental disability. The Court noted that the claimant was not competent to diagnose a particular psychiatric disability, such as PTSD, but that he was competent to describe his mental symptoms. Id. at 4-5, citing Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992) and Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Court also noted that the evidence submitted in support of the claim showed that the appellant had been diagnosed with psychiatric disabilities other than PTSD and that these disabilities arose "from the same symptoms for which he was seeking benefits." Id. at 9. The Court held that, in construing a claim, the Board must consider any disability "that may reasonably be encompassed by several factors including: the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim." Id. at 5. In this case, the record reflects that the Veteran was found to have an adjustment disorder with depressed mood in August 2004, more than 6 years prior to the filing of this claim. The Veteran did not relate his symptoms at that time to service and the treatment provider agreed that his depressed mood and nightmares were unrelated to upsetting events he experienced in Korea. The Veteran reported that current personal circumstances were caused his feelings of depression. Since neither the Veteran nor the treatment provider related the Veteran's symptoms to service and the Veteran has not been found to have an adjustment disorder during the period of this claim, the Board has not expanded the Veteran's claim to include an adjustment disorder. The Veteran requested a videoconference hearing before the Board in his substantive appeal. However, in May 2015, he submitted a statement indicating that he wished to withdraw the hearing request. The record before the Board consists of electronic records within Virtual VA and the Veterans Benefits Management System. FINDING OF FACT PTSD has not been present during the pendency of the claim. CONCLUSION OF LAW The criteria for service connection for PTSD are not met. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.304 (2015). 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 2014), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2015), 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 2014), 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 an October 2010 letter, prior to the January 2012 rating decision on appeal. The record also reflects that service treatment records (STRs), service personnel records, available private treatment records, and post-service VA medical records have been obtained. Although requested to do so, the Veteran has not provided sufficient details to permit verification of either of his alleged service stressors. The Board acknowledges that no VA examination was performed and no VA medical opinion was obtained in response to the claim. VA must provide a medical examination or obtain a medical opinion when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service, or establishing that certain diseases manifested 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) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A (d) (2), 38 C.F.R. § 3.159(c) (4) (i). The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, disease, or injury is a low threshold. McLendon v. Nicholson, 20 Vet. App. at 83. In this case, there is no competent evidence suggesting the presence of PTSD during the period of the claim. In addition, as discussed above, the Veteran has not identified a verifiable stressor. Therefore, VA is not obliged to provide an examination or obtain an opinion in response to this claim. 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 Veteran's 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, 1131; 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 2014); 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 from in-service stressors of witnessing the death of a civilian woman and being threatened by a captain while working in a supply room in Korea. The Veteran's service treatment records (STRs) are negative for evidence of any psychiatric disorder. VA Medical Center treatment records note the Veteran endorsed nightmares as a symptom of PTSD and was referred for a mental health consultation. In an August 2004 VA treatment record, the assessment was adjustment disorder with depressed mood. However, the Veteran did not assert that these symptoms were related to service and the treatment provider agreed that his depressed mood and nightmares were unrelated to upsetting events he experienced in Korea. The Veteran reported that current personal circumstances were causing his feelings of depression. According to an October 2004 VA treatment record, the Veteran reported that he was sleeping better and that he was no longer having distressing dreams. The Veteran reported that he had recurring dreams of the civilian woman who drowned in a river in Korea. In January 2012, a Defense Personnel Records Information Retrieval System notice reports that the killing of civilians was extremely difficult to verify and could not be researched by the Joint Services Records Research Center (JSRRC) without an official written report. In the Veteran's notice of disagreement, he alleged a second in-service stressor that occurred when he refused to provide a captain a weapon while working in a supply room in Korea. He indicated that there were 30 to 40 other men in the office at the time of the incident, the captain threatened revenge and the captain's friends told the Veteran that the captain was going to kill him and that the incident ended his military career. In a July 2014 VA Form 9, the Veteran reported that his nightmares of the Korean woman began when his brother was killed in 1996, and that the woman appeared in his dreams ever since whenever he felt troubled. After careful review of the record, the Board finds that service connection is not warranted for PTSD because no such disorder has been present during the period of the claim. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). There is no competent evidence of record that the Veteran has a diagnosis for PTSD. The Board acknowledges that the Veteran might sincerely believe that he has PTSD related to incidents in active service. The Board also acknowledges that the Veteran is competent to describe his post-service symptoms. Never the less, as a layperson, he is not competent to diagnose a psychiatric disorder. Moreover, any diagnosis of PTSD would not be based on a verifiable stressor. 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