Citation Nr: 1641169 Decision Date: 10/20/16 Archive Date: 11/08/16 DOCKET NO. 12-35 399 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Robert Lemley, Agent ATTORNEY FOR THE BOARD Steven D. Najarian, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1949 to November 1953. This matter comes before the Board of Veterans' Appeals (Board) on an appeal from an August 2011 rating decision issued by the regional office (RO) in Nashville, Tennessee. In October 2013, the Board remanded this matter for further evidentiary development. The paperless record of Virtual VA and the Veterans Benefits Management System (VBMS) has been reviewed. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The Veteran engaged in combat with the enemy. 2. The Veteran does not have PTSD or any other diagnosed psychiatry disability. CONCLUSION OF LAW An acquired psychiatry disability, to include PTSD, was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). The VCAA applies to the instant claim. VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. See 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2015); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The duty to notify in this case was satisfied by a letter sent to the Veteran in March 2011. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate the claim. See 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c), (d) (2015). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to the claim and that VA will provide a medical examination or obtain an opinion when necessary to decide the claim. See 38 C.F.R. § 3.159(c)(4) (2015). The evidence of record includes the Veteran's service treatment records, service personnel records, and statements of the Veteran. The Veteran underwent a VA examination in June 2011. The examination report reflects that the examiner interviewed and examined the Veteran, reviewed his complete medical history and claims folder, and documented his current medical condition. The examiner evaluated the Veteran according to the criteria of the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). As the Veteran's claim was filed in February 2011, and the appeal was certified to the Board in January 2015, psychiatric evaluation under the criteria of the DSM-5 is not required. See 79 Fed. Reg. 149, 45094 (August 4, 2014); 38 C.F.R. § 4.125(a) (2015). The Veteran argues that the June 2011 VA examination is inadequate because the examiner "did not concur with the veterans in service stressors as well as the veteran stating that he does suffer from complications with sleep as well as panic attacks." See September 2011 notice of disagreement. The Board finds that the examination was complete and that the examiner considered all of the Veteran's reported symptoms and history, including his exposure to a stressor. The VA examiner found that the Veteran met "the DSM-IV stressor criterion." See June 2011 VA examination report. The Board concludes that the June 2011 examination report is adequate for evaluation purposes. See 38 C.F.R. § 4.2 (2015); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that a VA medical examination or opinion must be adequate). The Board also finds that the RO substantially complied with the Board's remand instructions of October 2013. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Pursuant to the Board's remand, in November 2013, the RO requested that the Veteran identify the psychiatrist whom he allegedly saw in 2010 and provide a release to enable VA to obtain any treatment records from that provider. The record indicates that the Veteran submitted a release without naming any doctor. Although the RO wrote to the Veteran again, pointed out the omission, and requested that the Veteran fill out the highlighted portions of the release form, the Veteran did not respond and has not provided the identity of a psychiatrist from whom records could be sought. The Veteran's claim was readjudicated by a supplemental statement of the case of October 2014. The Board finds that VA has satisfied the notification and duty-to-assist provisions of the law and that no further action pursuant to the VCAA need be undertaken. Criteria of service connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease was incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a) (2015). Generally, in order to prove service connection, a veteran must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d) (2015). For a claim to be denied on the merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Establishing service connection for PTSD generally requires: (1) medical evidence diagnosing PTSD in conformance with established criteria; (2) a link, established by medical evidence, between a veteran's current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. §§ 3.304(f) (2015); Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010); Cohen v. Brown, 10 Vet. App. 128, 139 (1997). Effective August 4, 2014, VA amended the portion of the Rating Schedule dealing with mental disorders so as to replace outdated references to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), with references to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). See 79 Fed. Reg. 149, 45094 (August 4, 2014). VA directed that the changes be applied only to applications for benefits received by VA or pending before the agency of original jurisdiction (AOJ) on or after August 4, 2014, but not to claims certified to, or pending before, the Board, the CAVC, or the United States Court of Appeals for the Federal Circuit. Id. A veteran's lay testimony alone may establish the occurrence of a claimed in-service stressor in the absence of clear and convincing evidence to the contrary, if the veteran engaged in combat with the enemy, the claimed stressor is related to that combat, and the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service. See 38 C.F.R. § 3.304(f)(2) (2015). Analysis The Veteran seeks service connection for "acquired psychiatric conditions." See Veteran's claim of February 2011. He states that was exposed to combat situations in Korea during which he saw people become wounded or killed and was 15 feet away from a mortar round that exploded. See June 2011 VA examination report. In May 2011, VA made a formal finding of a lack of information required to corroborate stressors associated with a claim for service connection for PTSD. See May 2011 VA memorandum. The June 2011 VA examiner found that the Veteran met "the DSM-IV stressor criterion." A service personnel record indicates that the Veteran "participated in operations against enemy forces in Korea from 17 March 1952 to 15 July 1952," thereby tending to corroborate his account of combat exposure. The Board finds that the Veteran engaged in combat with the enemy. As the claimed stressor is related to that combat and is consistent with the circumstances, conditions, or hardships of the Veteran's service, the fact of a combat stressor is conceded. See 38 C.F.R. § 3.304(f)(2) (2015). The Veteran's claim ultimately fails, however, on the basis of a lack of medical evidence diagnosing an acquired psychiatric disability, including PTSD. The June 2011 VA examiner found that the Veteran's recent and immediate memory were "mildly impaired" and that he experiences "mild, isolated symptoms of anxiety." The examination results were favorable or unremarkable with respect to appearance, psychomotor activity, speech, attitude toward the examiner, affect, mood, attention, orientation, thought process, thought content, delusions, judgment, intelligence, and insight. The examiner determined that the Veteran does not meet the DSM-IV criteria for a diagnosis of PTSD, and no other psychiatric disorder was diagnosed. The examiner noted the Veteran's report that he had been "jumpy and nervous for many years but that as he aged he mellowed considerably and that his symptoms largely abated." The examiner found the Veteran to be currently "functioning at a relatively high level." VA must give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability or death benefits. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Non-expert evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). During the June 2011 VA examination, the Veteran told the examiner that in 2010 he "saw a psychiatrist who concluded he did not have significant mental health problems and discontinued tx." Despite being asked to do so by VA, the Veteran has not provided the name of the psychiatrist whom he allegedly met with in 2010, and therefore VA was unable to secure any relevant records that might be in the possession of that provider. In any event, the Veteran is competent to relate what he has been told by a medical professional, and the Veteran reports that no "significant mental health problems" were diagnosed. Following the June 2011 VA examination, the Veteran has stated that he suffers from "complications with sleep as well as panic attacks." See September 2011 notice of disagreement. The VA examiner found that the Veteran experienced neither sleep impairment nor panic attacks. The Veteran is competent to report his past and current symptoms. However, in this particular case, the Veteran is not competent to associate any of his claimed symptoms with a mental health diagnosis (and there are no Jandreau exceptions). Such an opinion requires specific medical training. See 38 C.F.R. § 3.159(a)(1) (2015). For the reasons expressed above, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for an acquired psychiatric disability, to include PTSD. ORDER Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD), is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs