Citation Nr: 18158092
Decision Date: 12/14/18	Archive Date: 12/14/18

DOCKET NO. 16-51 067
DATE:	December 14, 2018
ORDER
Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) is denied.
FINDING OF FACT
The Veteran does not have a current acquired psychiatric disorder, to include PTSD.
CONCLUSION OF LAW
The criteria for entitlement to service connection for a psychiatric disorder, to include PTSD have not been met. 38 U.S.C. § 1110, 1154, 5107; 38 C.F.R. § 3.303; 38 C.F.R. § 3.309.
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served as a member of the United States Army, with active duty service from June 1970 through January 1972.
This appeal comes to the Board of Veterans’ Appeals (Board) from a December 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Newnan, Georgia (hereinafter Agency of Original Jurisdiction (AOJ)).
In the December 2015 rating decision, the RO denied the Veteran’s claim for entitlement to service connection for an acquired psychiatric disorder, to include PTSD because the Veteran’s medical records do not provide a medical opinion linking a current diagnosis to an event from active duty.
After reviewing the Veteran’s medical records and statements to the Board, this issue has been recharacterized as a claim for entitlement to service connection for an acquired psychiatric disorder, to include PTSD. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that when a claimant makes a claim he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled). As such, the issues on appeal have been recharacterized as reflected on the title page of this decision.
Service Connection
In seeking VA disability compensation, a claimant generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110. “Service connection” basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303.
Establishing service connection generally requires competent evidence showing: (1) the existence of a current 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. Shedden v. Principi, 381, F.3d 1163, 1167 (Fed. Cir. 2004). 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 was incurred in service. 38 C.F.R. § 3.303(d).
Entitlement to service connection for an acquired psychiatric disorder, to include PTSD
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); (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. See 38 C.F.R. § 3.304(f). See also Cohen v. Brown, 10 Vet. App. 128 (1997). 
As to the first requirement, of a medical diagnosis for PTSD, effective August 4, 2014, VA amended the portion of its Schedule for Rating Disabilities dealing with mental disorders and its adjudication regulations that define the term “psychosis” to remove outdated references to the DSM-IV and replace them with references to the recently updated Diagnostic and Statistical Manual (Fifth Edition) (the DSM-V). See 79 Fed. Reg. 45,094. VA adopted as final, without change, this interim final rule and clarified that the provisions of this interim final rule do not apply to claims that have been certified for appeal to the Board or are pending before the Board on or before August 4, 2014. See Schedule for Rating Disabilities - Mental Disorders and Definition of Psychosis for Certain VA Purposes, 80 Fed. Reg. 14,308. Here, as the Veteran’s claim was certified to the Board in August 2018, the amended regulation applies.
Furthermore, with regard to an actual diagnosis of PTSD, lay persons are not categorically incompetent to speak on matters of medical diagnosis or etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Board must consider the type of condition specifically claimed and whether it is readily amenable to lay diagnosis or probative comment on etiology. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). In this regard, the Federal Circuit recently held that “PTSD is not the type of medical condition that lay evidence... is competent and sufficient to identify.” Young v. McDonald, 766 F.3d 1348, 1352-53 (Fed. Cir. 2014). Regardless, the Board acknowledges the Veteran is competent to report psychiatric symptoms both during and after service. See 38 C.F.R. § 3.159 (a)(2); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); (discussing that Veteran is competent to report a contemporaneous medical diagnosis); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (discussing general competency of a Veteran to report psychiatric symptoms).
That is, lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson, 581 F.3d at 1316. See also Jandreau, 492 F.3d at 1376-77. 
As for the second requirement, an in-service stressor, the evidence necessary to establish the occurrence of any in-service stressor varies depending upon the circumstances of the case. VA has provided for specific types of cases where lay evidence alone may be sufficient to describe the stressor and further corroborating evidence will not be required. Corroborating evidence is not required in cases where (1) PTSD is diagnosed in service; (2) the evidence establishes the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat; (3) the stressor is related to the Veteran’s fear of hostile military or terrorist activity; or (4) the evidence establishes that the Veteran was a prisoner-of-war and the stressor is related to that prisoner-of-war experience. 38 C.F.R. § 3.304. In any of the above situations, the Veteran’s lay testimony or statement is accepted as conclusive evidence of the stressor’s occurrence and no further development or corroborative evidence is required providing that such testimony is found to be consistent with the circumstances, conditions, or hardships of service and there is no clear and convincing evidence to the contrary. See 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304.
The ordinary meaning of the phrase “engaged in combat with the enemy,” as used in 38 U.S.C. § 1154(b), requires that a veteran have participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. VAOPGCPREC 12-99 (Oct. 18, 1999). Service in a combat zone does not establish that a veteran engaged in combat with the enemy. Id. Whether the veteran engaged in combat with the enemy is determined through the receipt of certain recognized military citations or other supportive evidence. West v. Brown, 7 Vet. App. 70 (1994).
The determination of whether the requirements of service connection have been met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). In making these determinations, the Board must consider and assess the credibility and weight of all evidence in the claim file, including the medical and lay evidence, to determine its probative value. In doing so, the Board must provide its reasoning for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Barr v. Nicholson, 21 Vet. App. 303 (2007).
When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. A claimant need only demonstrate an approximate balance of positive and negative evidence in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). For a claim to be denied on the merits, a preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996).
With consideration of the above described regulations governing PTSD claims, the Board finds the evidence, when considered in a light most favorable to the Veteran, warrants a finding against entitlement to service connection for PTSD.
As to the first requirement, evidence of a current diagnosis, the Board finds that the Veteran is not entitled to an award of service connection, as the weight of the evidence does not show that he has PTSD. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. §§ 1110, 1131; Degmetich v. Brown, 104 F.3d 1328 (1997). The current disability requirement 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), or “when the record contains a recent diagnosis of disability prior to... filing a claim for benefits based on that disability.” Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).
The Board notes that recent treatment records show diagnostic findings have been negative for PTSD.  A March 2011 private hospitalization record notes that a psychiatric examination was negative for depression.  The Veteran was not nervous or anxious.  He had a normal mood and affect with normal speech and behavior.  
A June 2011 VA treatment record notes the Veteran was screened for PTSD. The examiner concluded that the screening test was negative for a diagnosis of PTSD.  When asked if the Veteran has ever had any experience that was so frightening, horrible or upsetting that, in the past month, he has had any nightmares about it or thought about it when he did not want to, the Veteran responded that he did not. The Veteran reported that he was not constantly on guard, watchful, or easily startled. The Veteran also reported that he did not feel numb or detached from others, activities, or his surroundings. Additionally, the examiner reported that the Veteran denied any mental health problems.  Likewise, an April 2013 depression screen was negative for depression. 
Similarly, a review of the Veteran’s service treatment records (STR) shows no evidence of a confirmed diagnosis for, or even mention of, PTSD of any other acquired psychiatric disability. See Service Treatment Records.
Finally, the Board has considered the Veteran’s lay reports of symptoms. While the Veteran is competent as a lay person to report symptoms of PTSD, these reports of symptoms, although acknowledged, are outweighed by the clinical and diagnostic evidence of record. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The objective clinical and diagnostic evidence of record shows the Veteran does not have a confirmed diagnosis for PTSD. In the absence of proof of a present disability, there can be no valid claim for direct service connection. 38 U.S.C. § 1131; see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary).
Therefore, the Board has reviewed all medical and lay evidence, but finds there is no probative evidence of record which establishes that the Veteran has been diagnosed with PTSD during the pendency of his appeal. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim for service connection. 38 U.S.C. § 5107; 38 C.F.R. § 3.102.
 
DAVID L. WIGHT
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	K. Bristor