Citation Nr: 1825501	
Decision Date: 04/27/18    Archive Date: 05/07/18

DOCKET NO.  14-34 068	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson, Mississippi


THE ISSUE

Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD).  


ATTORNEY FOR THE BOARD

C. O'Donnell, Associate Counsel


INTRODUCTION

The Veteran had active military service with the United States Army from December 1988 to March 1990.  

This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi.      

The Board has recharacterized the Veteran's claim for service connection for a PTSD as a claim for service connection for an acquired psychiatric disorder, to include PTSD.  See Clemons v Shinseki, 23 Vet App 1, 5-6, 8  (2009).  


FINDING OF FACT

The Veteran does not have a current acquired psychiatric disability that is related to his period of active service.    


CONCLUSION OF LAW

The criteria for service connection for an acquired psychiatric disorder have not been met.  38 U.S.C. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Board notes that the Veteran has not been afforded a VA medical examination in connection with the claim on appeal.  However, the Board finds that an examination is not warranted.  Under the law, an examination or medical opinion is considered necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability; (2) establishes that the veteran suffered an event, injury, or disease in service; and, (3) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service or with another service-connected disability.  38 C.F.R. § 3.159  (c)(4). 

In the case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), the United States Court of Appeals for Veterans Claims (Court) held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or 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.

In this case, a VA examination is unnecessary to decide the claim because the Veteran has not been shown to have a current disability.  As discussed below, there are no treatment records noting a disability and the Veteran has not stated that he has sought treatment for or has been diagnosed with a psychiatric disability by a medical professional.  Therefore, because there is no evidence of a current disability, the Board finds that a VA examination is unnecessary in this case.  38 C.F.R. § 3.159 (c)(4).

Additionally, the Veteran has not raised any specific 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).

Governing Law

A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service.  38 U.S.C. §§ 1110, 1131 (2012).  To establish service connection, "the veteran must show: (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." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  

However, the absence of a documented disability while in service is not fatal to a claim for service connection.  Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). When a Veteran does not meet the regulatory requirements for a disability at separation, he can still establish service connection by submitting evidence that a current disability is causally related to service.  Hensley v. Brown, 5 Vet. App. 155, 159-60 (1993). 

In a claim for service connection, the requirement of a "current disability" is satisfied if a disorder is diagnosed at the time a claim is filed or at any time during the pendency of the appeal.  McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).

Analysis

In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that service connection is not warranted for an acquired psychiatric disability.

As a preliminary matter, the Board notes that the Veteran's service treatment records contain no reference to a psychological disability while in service.  On his January 1990 report of medical history, he denied nervous trouble of any sort, memory loss, depression, excess worry, and frequent trouble sleeping.  Similarly the Veteran received a normal psychiatric evaluation on his January 1990 separation clinical evaluation. 

Additionally, the record does not contain any post-service VA or private treatment records.  There is no evidence of record showing a current diagnosis or treatment by a medical professional for an acquired psychiatric disorder, to include PTSD.

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. § 1131 (2012); 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).

Under these circumstances, for the Board to conclude that the Veteran has an acquired psychiatric disorder that had its origin during service would be speculation, and the law provides that service connection may not be granted on a resort to speculation or remote possibility.  38 C.F.R. § 3.102; Obert v. Brown, 5 Vet. App. 30, 33 (1993).  Simply put, in the absence of a present disability that is related to service, a grant of service connection is clearly not supportable.  See Brammer, at 223.

The Veteran was advised of the need to submit medical evidence demonstrating a current disorder and a nexus between a current disorder and service by way of letters from the RO to him, but he has failed to do so.  A claimant has a responsibility to present and support a claim for benefits under laws administered by the VA, 38 U.S.C. § 5107 (a), and the Veteran was clearly advised in the letters of the need to submit medical evidence of a current disorder and a relationship between a current disorder and an injury, disease or event in service.

The Board has considered the Veteran's own statements made in support of his claim, specifically, that he has an acquired psychiatric disorder, to include PTSD, that is related to military service.  Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. at 435, as to the specific issue in this case, diagnosing a psychiatric disability falls outside the realm of common knowledge of a lay person.  See Jandreau v. Nicholson, 492 F.3d at 1377.  As such, to the extent the Veteran is self-diagnosing an acquired psychiatric disorder, the Board finds his statements are not competent lay evidence. 

Therefore, the requirement of a "current disability" is not satisfied as there is no evidence of an acquired psychiatric disorder at the time the claims were filed or at any time during the pendency of the appeal.  McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).



						(CONTINUED ON NEXT PAGE)

Based on a review of the foregoing evidence, and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder.  


ORDER

Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is denied.  



____________________________________________
A.J. Spector
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs