Citation Nr: 1804143	
Decision Date: 01/22/18    Archive Date: 01/31/18

DOCKET NO.  16-40 137	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico


THE ISSUE

Entitlement to service connection for posttraumatic stress disorder (PTSD). 


REPRESENTATION

Veteran represented by:	The Commonwealth of Massachusetts Commissioner of Veterans' Services


ATTORNEY FOR THE BOARD

J.T.Stallings, Associate Counsel


INTRODUCTION

The Veteran had active service from February 1952 to January 1954. 

This matter comes before the Board of Veterans' Appeals (Board) from a June 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. 

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).


FINDING OF FACT

The Veteran does not have a PTSD disability that was incurred in or was caused by his military service. 

CONCLUSION OF LAW

The criteria for service connection for a PTSD disability have not been met. 38 U.S.C. § 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duty to Notify and Assist

Neither the Veteran nor the 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 duty to assist argument).

II. Service Connection

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In addition, disorders diagnosed after discharge may also still be service connected if all the evidence, including pertinent service records, establishes the disorder was incurred in service. 38 C.F.R. § 3.303(d). See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). As a general matter, service connection requires competent evidence showing: (1) the existence of a present disability; (2) 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. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).

Service connection for PTSD has unique evidentiary requirements. It generally requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (i.e., DSM-5); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). See also Cohen v. Brown, 10 Vet. App. 128 (1997).

The DSM cannot be used "as a basis for rejecting the Veteran's favorable medical evidence as to the sufficiency of a stressor or the adequacy of the Veteran's symptomatology." Id. As such, in order to make a finding that the Veteran in this case did not have a valid PTSD diagnosis, the Board must clearly articulate its reasons for finding that the PTSD diagnosis was not made in accordance with the DSM requirements.

The United States Court of Appeals for Veterans Claims (Court) has held that Congress specifically limited entitlement to service connected benefits to cases where there is a current disability. "In the absence of proof of a present disability, there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement of a current disability 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." McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). 

In regard to an in-service stressor, if it is established through military citation or other supportive evidence that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(2). See also 38 U.S.C. § 1154(b) and 38 C.F.R. § 3.304(d); Gaines v. West, 11 Vet. App. 353 (1998) (Board must make a specific finding as to whether the Veteran engaged in combat). To gain the benefit of a relaxed standard for proof of service incurrence of an injury or disease, 38 U.S.C. § 1154(b) requires that the veteran have actually participated in combat with the enemy. See VAOPGCPREC 12-99.

Effective July 13, 2010, if a stressor claimed by a veteran is related to that veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that a veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of that veteran's service, a veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(3).

"[F]ear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the Veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. See id.

The final requirement of 38 C.F.R. § 3.304(f) is medical evidence of a nexus between the claimed in-service stressor and the current disability. It is not error for the Board to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons or bases. See Owens v. Brown, 7 Vet. App. 429, 433 (1995).

Once the evidence has been assembled, it is the Board's responsibility to evaluate the evidence. 38 U.S.C. § 7104(a) (2012). The Board must determine, as a question of fact, both the weight and credibility of the evidence. Equal weight is not accorded to each piece of evidence contained in a record; every item does not have the same probative value. The Board must account for the evidence which it finds to be persuasive or unpersuasive, analyze the credibility and probative value of all material evidence submitted by and on behalf of a claimant, and provide the reasons for its rejection of any such evidence. See Struck v. Brown, 9 Vet. App. 145, 152 (1996); Caluza v. Brown, 7 Vet. App. 498, 506 (1995); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994); Abernathy v. Principi, 3 Vet. App. 461, 465 (1992); Simon v. Derwinski, 2 Vet. App. 621, 622 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164, 169 (1991).

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(b) (2012); 38 C.F.R. § 3.102 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Following a review of the evidence of record, the Board finds that the preponderance of evidence weighs against the Veteran's claim of entitlement to service connection for PTSD. The reasons for this determination are explained below.

The Veteran does not have a diagnosis of PTSD that meets the necessary DSM-5 criteria. 

The Veteran was first afforded a VA examination on this claim in June 2015. The Veteran claims that his military service, which included time in Korea, caused lifelong issues.

The June 2015 VA examiner acknowledged that the Veteran had a qualifying in-service stressor under the DSM 5 criteria. The Veteran was noted as having combat experience in the field of infantry while in Korea. The examiner determined that Veteran's symptoms are at least as likely as not related to the fear of hostile military or terrorist activity and therefore, a qualifying in-service stressor. However, the examiner stated that the Veteran did not have a current diagnosis of PTSD due a lack of functional deficits in any of the categories reviewed for consideration of this condition. The examiner stated that the Veteran's symptoms due to his in-service stressor, which included anxiety, irritability and nervousness, were not severe enough to interfere with occupational and social functioning. For example, he was able to retire due to age not because of any symptomology and maintained family relationships. He also maintains hobbies such as exercising and watching TV. The examiner also noted that the Veteran had no recent psychiatric ambulatory care and no psychiatric medications despite as the Board notes, his already service-connected conversion reaction disability. Therefore, the examiner determined the Veteran did not have a diagnosis of PTSD under the necessary criteria. 

In fact, the evidence of record indicates that the Veteran has had several psychological examinations since service due to his service-connected conversion reaction disability and none of the examiners have diagnosed PTSD as one of the Veteran's disabilities. The Board notes that VA adjudicators are not free to ignore or disregard the medical conclusions of a VA physician, and are not permitted to substitute their own judgment on a medical matter. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Willis v. Derwinski, 1 Vet. App. 66 (1991). Therefore, the weight of the evidence is against the Veteran meeting the criteria for a PTSD diagnosis. 

The Veteran has also not provided any opposing medical opinions that support his claim for PTSD. "It is the veteran's 'general evidentiary burden' to establish all elements of his claim." Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009).  VA "is required to reject a disability claim if the claimant fails to put forth sufficient evidence showing that he suffered an injury or incurred a disease during service."  Holton v. Shinseki, 557 F.3d 1362, 1370 (Fed. Cir. 2009).

As the evidence weighs against the finding of a current disability, there is no need to discuss the additional prongs for a direct service connection claim as the fundamental requirement of a current disability has not been met. 

The Board finds the most probative and credible evidence establishes that the Veteran does not have a current disability of PTSD. Therefore, the claim for service connection for PTSD is denied. As the weight of the evidence is against the Veteran's claim, the benefit-of-the-doubt doctrine does not apply.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53.  


ORDER

Entitlement to service connection for PTSD is denied. 




____________________________________________
A. P. SIMPSON
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs