Citation Nr: 1803160 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 13-30 897 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for psychiatric disability, other than PTSD. 3. Entitlement to service connection for residuals of a head injury. 4. Entitlement to service connection for headaches. 5. Entitlement to service connection for a disability manifested by hand tremor. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Seay, Counsel INTRODUCTION The Veteran had active service from July 1977 to July 1980. These matters come before the Board of Veterans; Appeals (Board) on appeal from an April 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. The Veteran specifically claimed service connection for PTSD. However, review of the VA medical treatment records shows diagnoses of depression. Therefore, the issue of entitlement to service connection for psychiatric disability, other than PTSD, is before the Board for appellate review. See Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (holding that the claimant without medical expertise cannot be expected to precisely delineate the diagnosis of his mental illness; he filed a claim for the affliction that his mental condition, whatever it is, causes him). The Veteran initially requested a hearing in connection with his appeal. He withdrew the request in November 2013. The issues of entitlement to service connection for psychiatric disability, other than PTSD, entitlement to service connection for residuals of head injury, and entitlement to service connection for headaches, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The competent evidence of record does not reflect a diagnosis of PTSD in accordance with the American Psychiatric Association, Diagnostic and Statistical Manual for Mental Disorders, Fifth Edition (DSM-V). 2. The competent evidence of record does not reflect a current diagnosis pertaining to hand tremor. CONCLUSIONS OF LAW 1. The criteria for service connection for PTSD are not met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.304 (2017). 2. The criteria for service connection for a disability manifested by hand tremor are not met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017). In addition, VA's duty to assist has been met. Identified VA medical treatment records and service medical treatment records are associated with the claims folder. The Veteran was not provided VA medical examinations for PTSD or hand tremor. However, the competent evidence of record does not reveal any diagnosis of PTSD or a disability manifested by hand tremor during service or thereafter. Therefore, VA examinations are not required. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(4). PTSD 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 provisions of 38 C.F.R. §§ 3.384, 4.125, 4.126, 4.127, and 4.130 were updated via a final rule, effective August 4, 2014, in part to substitute references to the DSM-V for the DSM-IV. The changes are applied to applications for benefits received by VA or pending before the AOJ on or after August 4, 2014, but not to claims certified to or pending before the Board, the United States Court of Appeals for Veterans Claims, or the United States Court of Appeals for the Federal Circuit. The Board notes that the Veteran's case was certified to the Board after the effective date of the final rule. Thus, the Board will refer to the DSM-V criteria herein. The Veteran has reported several alleged stressors to include fear of being at the Korean demilitarized zone (DMZ) in 1984 and being in a bar in Korea when the power went out while being surrounded by people who did not speak English. However, as will be discussed below, service connection for PTSD is being denied due to the absence of a current diagnosis of PTSD. Therefore, the Board will only address the element of service connection that is missing, i.e., competent evidence of a current disability. 38 C.F.R. § 3.304 (f). The VA medical treatment records are absent for any diagnosis of PTSD. The Board recognizes that a September 2008 disability evaluation for Social Security Administration indicated an assessment of PTSD. However, there was no reference to the DSM-V, see 38 C.F.R. § 4.125(a), and the mental health evaluation provided shortly thereafter in October 2008 only provided a diagnosis of depressive disorder. There is no diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a) at any time during the appeal or proximate to the Veteran's claim for service connection. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); see also Romanowsky v. Shinseki, 26 Vet. App. 289, 321 (2013). The Board recognizes the Veteran's belief that he has PTSD. The Veteran is competent to attest to lay-observable symptomatology; however, he is not competent to diagnose himself with PTSD. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). In a claim of service connection for PTSD, there is a legal requirement that the diagnosis of PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125, that is, a diagnosis that conforms to the DSM-V. 38 C.F.R. § 3.304. Accordingly, the diagnosis of PTSD is a complex medical question. The Veteran has not been shown to possess the requisite medical expertise or knowledge to diagnose PTSD in accordance with the DSM-V. Therefore, his statements regarding a diagnosis of PTSD are not considered competent and are not probative as to whether he has a diagnosis of PTSD. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997). In the absence of evidence of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Evidence must show that the Veteran currently has the disability for which benefits are being claimed. There is no evidence of a competent diagnosis of PTSD. In light of the absence of a competent diagnosis of PTSD, service connection for PTSD is denied. 38 C.F.R. § 3.304 (f); 4.125. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable and the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Hand Tremor The Veteran has requested service connection for hand tremor. In this respect, the evidence of record does not reflect any diagnosis pertaining to a disability manifested by hand tremor. The Board recognizes the Veteran's belief that he has a disability manifested by hand tremor. The Veteran is competent to attest to lay-observable symptomatology; however, he is not competent to diagnose himself with a hand tremor or a disability manifested by hand tremor. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). The diagnosis of such would be a complex medical question and the Veteran has not been shown to possess the requisite medical expertise or knowledge to diagnose such a disability. Thus, the Veteran's statements regarding a diagnosis are not considered competent and are not probative as to whether he has a diagnosis of a disability manifested by hand tremor. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997). In the absence of evidence of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As there is no competent evidence of a diagnosis of a disability manifested by hand tremor, the claim must be denied as there is no current disability. In light of above, service connection for a disability manifested by hand tremor is denied. As a preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable and the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for PTSD is denied. Entitlement to service connection for a disability manifested by hand tremor is denied. REMAND The record reflects that the Veteran had service in the United States Army Reserve following completion of his period of active service in 1980. His official military personnel folder and all service medical treatment records have been associated with the claims folder. However, the Veteran has alleged psychiatric symptoms since 1984 when he was on active duty in Korea. Accordingly, verification of all dates of active duty, active duty for training (ACDUTRA), and inactive duty training (INACDUTRA), completed by the Veteran during his time in the United States Army Reserve must be accomplished. Next, the record shows that the AOJ indicated an attempt to schedule a VA medical examination in connection with the claim for service connection for head injury, but then noted that the examination was not completed as the Veteran was incarcerated. Review of the record shows that the Veteran is currently incarcerated. The duty to assist provisions of 38 U.S.C. § 5103A and 38 C.F.R. § 3.159 apply equally to incarcerated Veterans and non-incarcerated Veterans (see VHA DIRECTIVE 1046 (Apr. 23, 2014)), and VA has special procedures for handling the scheduling of VA examinations for incarcerated veterans. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (providing that the duty to assist incarcerated veterans requires VA to tailor its assistance to meet the peculiar circumstances of confinement; as such individuals are entitled to the same care and consideration given to their fellow non-incarcerated veterans). VA's duty to assist an incarcerated veteran includes: (1) attempting to arrange transportation of the claimant to a VA facility for examination; (2) contacting the correctional facility and having their medical personnel conduct an examination according to VA examination work sheets; or (3) sending a VA or fee-basis examiner to the correctional facility to conduct the examination. Bolton v. Brown, 8 Vet. App. 185, 191 (1995). The VA Adjudication Procedures Manual details the procedures for scheduling examinations of incarcerated veterans. See VA Adjudication Procedures Manual, M21-1MR, III.iv.3.F.2.d. (2017). The manual calls for the RO or the local Veterans Health Administration (VHA) Medical Examination Coordinator to confer with prison authorities to determine whether a veteran should be escorted to a VA medical facility for examination by VHA personnel, or examined at the prison by: VHA personnel; prison medical providers at VA expense; or fee-basis providers contracted by VHA. Id. On remand, the AOJ must make efforts in accordance with the procedures outlined above to complete a VA medical examination concerning the Veteran's claim for service connection for residuals of head injury. As the Veteran's claim for service connection for headaches may be related to the head laceration noted in service in 1979, the Board also finds that the examination should address etiology of the claimed headaches. Accordingly, the case is REMANDED for the following action: 1. Contact the National Personnel Records Center (NPRC), the Defense Finance Accounting Service (DFAS) and/or any other appropriate source to verify all periods of active duty, ACDUTRA and INACDUTRA completed by the Veteran during his United States Army Reserve service. All records and/or responses received should be associated with the claims folder. 2. Make attempts to schedule the Veteran for an examination with respect to residuals of head injury and headaches pursuant to the guidance in M21-1MR, Pt. III, Subpt. iv, Ch. 3, Sec. F.2.d. (i.e. whether a veteran should be escorted to a VA medical facility for examination by VHA personnel, or examined at the prison by VHA personnel, prison medical providers at VA expense, or fee-basis providers contracted by VHA). The efforts to schedule this examination must be documented in the claims folder and if such an examination cannot be scheduled, an explanation must be included in the record. The claims folder must be made available for review. Following examination of the Veteran and review of the claims folder, the examiner must address the following: *Is it at least as likely as not (50 percent likelihood or higher) that any residuals of a head injury are related to active service, to include the injury and head laceration in 1979. *Is it at least as likely as not (50 percent likelihood or higher) that any headaches are related to active service, to include the injury and head laceration in 1979. Rationale must be provided for each opinion reached. 3. After completion of the above and any other development deemed necessary, readjudicate the issues on appeal. If any benefit sought remains denied, issue a Supplemental Statement of the Case and return the case to the Board. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs