Citation Nr: 1751891 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 12-35 304 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, claimed as posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. Harper, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1973 to February 1975 in the United States Navy. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a January 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Veteran requested a hearing before the Decision Review Officer (DRO) in his December 2012 substantive appeal, via a VA Form 9. The Veteran was notified of a February hearing date by letter dated January 2012. The Veteran requested that his hearing be rescheduled so he could arrange transportation to the hearing. He also requested the hearing be scheduled on a Tuesday or Thursday. See February 2017 Report of General Information. The Veteran's hearing was rescheduled for Tuesday, March 28, 2017. Subsequently, the Veteran reported he would be unable to attend the DRO hearing due to an ongoing health condition and the distance required for him to travel. The Veteran requested that the claim not be certified to the Board of Veteran's appeals until the DRO had an opportunity to review the Veteran's identified stressors, which he reported he had already submitted at that time. See March 28, 2017 Report of General Information. No stressor statement has been associated with the claims file. FINDING OF FACT The Veteran has not been diagnosed with PTSD or any other acquired psychiatric disorder. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, claimed as PTSD, are not met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Procedural Duties In this case, neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). II. Pertinent Service Connection Law and Regulations Service connection will be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C § 1110; 38 C.F.R. § 3.303 (a). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to her through her senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The Veteran seeks service connection for posttraumatic stress disorder (PTSD). He claims that he has a current psychiatric disorder that is related to or caused by service. There is no evidence reflecting that the Veteran has been diagnosed with any acquired psychiatric disorder, to include PTSD, depressive disorder, anxiety disorder, or psychosis, since the date of claim or during the pendency of the appeal. VA treatment records associated with the claims file dated between June 2005 and August 2016 do not note complaints, diagnosis or treatment of any psychiatric disorder. Specifically, VA treatment records dated June 2005 report the Veteran had negative depression and PTSD screenings. Additionally, he confirmed he was not being treated for PTSD. The Veteran denied experiencing nightmares, avoidance, vigilance, numbness and detachment from other people in an August 2006 VA treatment record, which resulted in a negative PTSD screening. Again, the Veteran screened negative for depression in July 2009 VA treatment records. The Veteran was negative for depression and PTSD in a routine screening in February 2013. Similarly, the Veteran screened negative in a depression screening in July 2014 VA treatment records. The Veteran denied experiencing depression or anxiety in an April 2015 VA treatment record. The Veteran has not been afforded a VA psychiatric examination. Pursuant to McClendon v. Nicholson, 20 Vet. App. 79 (2006), an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in- service event, injury or disease," or that a disease, manifested in accordance with presumptive service connection regulations, occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. All four elements must be met to trigger the requirement for VA to provide a VA examination. The Board finds that a VA examination in this instance is unnecessary. The evidence of record is against a finding that the Veteran has a current diagnosis of PTSD or any other acquired psychiatric disorder based on the evidence currently of record. Further, the Veteran indicated in his December 2012 substantive appeal that he intended to submit a diagnosis and stressor statement in the near future; however, the Veteran has yet to submit this evidence or identify a treatment provider for which VA could request the treatment records. Thus, in addition to there being no evidence of a current psychiatric disorder, he has also not provided any stressor information that may even suggest a service incurrence event. The Board emphasizes that the duty to assist is a two-way street. If the Veteran wishes help, he must actively assist VA by providing the information requested by VA to support his claim. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Service connection may only be granted for a current disability; when a claimed condition is not shown, there may be no grant of service connection. See 38 U.S.C. § 1110; Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability). "In the absence of proof of a present disability there can be no valid claim." See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Insomuch as the Veteran has attempted to establish a psychiatric diagnosis through his own lay assertions, the Board finds that the Veteran is not competent to diagnose that he has an acquired psychiatric disorder due to the medical complexity of the matter. See Young v. McDonald, 766 F.3d 1348, 1353 (Fed. Cir. 2014) ("PTSD is not the type of medical condition that lay evidence . . . is competent and sufficient to identify"); Jandreau, 492 F.3d 1372, 1377 n.4; Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (holding that a claimant without medical expertise cannot be expected to precisely delineate the diagnosis of his mental illness). Thus, the Veteran is not competent to render such a diagnosis. After a review of all of the evidence of record, both lay and medical, the Board finds that the weight of the competent evidence demonstrates that the Veteran does not have any diagnosed acquired psychiatric disorder, to include PTSD. The Veteran contends he should be entitled to service connection for an acquired psychiatric disorder. However, service connection is only warranted if a claimant has a current disability. Here, the record contains no diagnosis of any acquired psychiatric disorder. As there is no current acquired psychiatric disorder, service connection must be denied. As there is no current disability, a discussion of any in-service incurrence or aggravation of a disease or injury, or nexus, is unnecessary. Entitlement to service connection for an acquired psychiatric disorder is denied. ORDER Entitlement to service connection for an acquired psychiatric disorder to include, PTSD is denied. ____________________________________________ S. B. MAYS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs