Citation Nr: 18119080 Decision Date: 07/18/18 Archive Date: 07/17/18 DOCKET NO. 13-19 778 DATE: July 18, 2018 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT The weight of the evidence does not establish that the Veteran had a posttraumatic stress disorder (PTSD) diagnosis at any point after his active duty Navy service. CONCLUSION OF LAW The Veteran did not incur PTSD as a result of his active duty Navy service. 38 U.S.C. §§ 1110, 1154, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 4.125 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Navy from December 1965 to October 1969. The Veteran’s certificate of discharge from active duty (DD214) indicates that he was the recipient of the Vietnamese Service Medal and Vietnamese Campaign Medal for 25-months of foreign service to the United States of America. In January 2011, the Veteran initiated his PTSD, glaucoma, and pre-diabetes entitlement claims for service connection. In May 2013, the Agency of Original Jurisdiction (AOJ) supplied a Statement of the Case for the Veteran’s three claims. In July 2013, the Veteran responded with a VA Form 21-4138 and a VA Form 9; these documents did not mention the glaucoma and/or pre-diabetes entitlement claims for service connection. Ultimately, the Veteran’s glaucoma and pre-diabetes service-connection claims were not perfected and, therefore, they were not certified to the Board for appellate review. See 38 C.F.R. § 20.302 (b). In Reliford v. McDonald, 27 Vet. App. 297 (2015), the Court of Appeals for Veterans Claims acknowledged VA Fast Letter 10-30 (Aug. 10, 2010), recognizing that it is VA policy to accept a VA Form 21-534 as both a claim for accrued benefits and a substitution request. See also 38 C.F.R. § 3.1010 (c)(2)(holding that, in lieu of a specific request to substitute, a claim for accrued benefits, survivor's pension, or DIC is deemed to include a request to substitute if a claim for monetary benefits was pending when the claimant died). The regulation is also clear that it is the responsibility of the RO and not the Board to determine whether a particular claimant is eligible for substitution. 38 C.F.R. § 3.1010 (e) (“The agency of original jurisdiction will decide in the first instance all requests to substitute, including any request to substitute in an appeal pending before the Board of Veterans’ Appeals.”) In October 2016, VA received the Appellant’s request for substitution. The Appellant’s request followed the Veteran’s death from atherosclerotic cardiovascular disease. In September 2017, the AOJ granted the Appellant’s request to substitute for the purpose of processing the late Veteran’s pending PTSD appeal to completion. 1. Entitlement to service connection for posttraumatic stress disorder is denied. In January 2011, the Veteran initiated his service-connection claim for PTSD. Therein, the Veteran posited that, “(s)ince my discharge I have had many problems.” 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-IV or 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 VA is responsible for determining whether the evidence supports the claim or is in relative equipoise (with the Appellant prevailing in either event) or whether a preponderance of the evidence is against the claim (in which case the claim is denied). Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. §5107 (b). The Board observes that the Appellant testified during her February 2018 Board hearing that she and the Veteran had gone to counseling sometime between 2000 and 2003. However, she indicated that she could not remember the facility where the counseling occurred or if any records were available from that facility and that efforts to obtain records from that facility would not be successful. Accordingly, further development in order to obtain any counseling records would be futile. The Appellant has no identified, nor does the record reflect, any other outstanding treatment records pertaining to the Veteran’s mental health. Accordingly, the Board will proceed with a decision in this appeal. In January 2011, VA received treatment notations for the Veteran from the San Diego VA Medical Center (VAMC). These records do not contain any mental health related complaints, treatments, or diagnoses. On the contrary, a Primary Care Narrative dated in August 15, 2008, notes that the Veteran scored zero, which is negative for depression. In January 2011, the Veteran supplied a statement along with his PTSD claim. Therein, the Veteran revealed that, “(d)uring my two tours in Vietnam as a Navy Seabee, my missions involved, driving through war zones and providing ground support to combat soldiers.” The Veteran also posited that, “(t)he stresses that I underwent during my Navy service caused recurring nightmares, a more recluseful lifestyle that ultimately lead to heavy drinking. . . . The combination of these effects in my life caused my wife and I to separate 10 years ago.” In January 2011, the Appellant also supplied a statement. Therein, the Appellant posited that, “(t)he purpose of this letter is to outline the effects serving in the U.S. Navy during the Vietnam War, had on my husband. Because of the traumatic experiences he encountered in Vietnam, I witnessed him having difficulty sleeping due to recurring nightmares. . . . After discharging from the Navy in 1971, he started at Eaton Corporation and worked there for 15 years. When the factory closed, he had a hard time holding down a regular job and began drinking more heavily. This caused significant strain our marriage and caused us to separate after almost 40 years of marriage. Because of the factors mentioned above, I believe my husband is still suffering from stress caused while serving in the Vietnam War.” In June 2011, VA received a short, hand-written statement from the Veteran. Therein, the Veteran posited that, “I continue to suffer from my symptoms of PTSD and desire a PTSD examination as soon as possible.” In July 2011, the Veteran underwent a VA examination to consider the nature and etiology of any currently endured acquired psychiatric disability symptoms. During the examination, the Veteran did not report outpatient treatment for a mental disorder, nor did he identify mental health hospitalizations. When queried about his stressor(s), the Veteran reported that, “he saw indirect combat primarily, he experienced fear of hostile military intentions.” Regarding symptoms, the Veteran reported, “recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions. Recurrent distressing dreams of the event. Intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event.” In addition to an exaggerated startle response, the Veteran relayed, “(e)fforts to avoid thoughts, feelings, or conversations associated with the trauma. Efforts to avoid activities, places, or people that arouse recollections of the trauma.” Ultimately, the examining psychiatrist did not identify any acquired psychiatric diagnosis under the DSM-IV criteria. Within the supporting commentary, the examiner reported that, “though [the Veteran] has some (symptoms) consistent with PTSD and certainly meets stressor criteria he does not meet DSM-IV criteria for a full diagnosis of PTSD. His (symptoms) are occasional nightmares, exaggerated startle response and some painful memories.” In February 2018, the Appellant and her daughter supplied sworn testimony to the undersigned Veterans Law Judge (VLJ), utilizing videoconference technology. The Appellant testified that, “(the Veteran) would have nightmares in the middle of the night and reach up and grab me, and I'd have to say it's me, it's okay, it's okay.” Later in her testimony, the Appellant continued with, “I think he would just think that the rockets were coming in or something because he would just wake up and just . . . he'd be ready to fight.” The Veteran’s daughter testified that, “I guess the only way I can really sum up dad's life is that he struggled. He struggled a lot. And, like (my brother), I'd ask him about what happened, too, and he wouldn't talk about it. They got very closed off. You had mentioned denial and that's where dad lived all the time. He wouldn't open up to people. And I remember he would --he'd be fine going along and all of a sudden he would get really angry. If his routine was disrupted he would get angry or, for whatever reason, and my mom was usually on the receiving end of that. But, yeah, he struggled a lot.” In February 2018, VA received a letter from the Veteran’s and Appellant’s son, JG. Therein, JG relayed that, “as a young boy I was always curious about what my Dad did in the Navy and what he saw. I approached him many times to discuss his experience but he never wanted to talk about it and would get frustrated if I kept bothering him about it. I observed that he was not only that way with me but with others that inquired.” The Veteran’s son continued with, “(m)y Dad could be social when he wanted to but for the most part he liked staying at home and working in the garage on his car or in the yard and garden. Over the years I saw his 1 or 2 beer a day habit grow into a major drinking problem. The increase in drinking first started after losing his factory job after 10+ years due to the factory closing. This was his first job out of the Navy and he truly loved working at the factory. In the years to follow he became depressed after not being able to find steady work.” Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. See 38 C.F.R. § 3.159 (a)(2). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter 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); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). Initially, the Board notes that there is absolutely no reason to question the credibility of the written and/or oral statements supplied by the late Veteran, the Appellant, or their children. The Board sincerely appreciates their account of the Veteran’s symptoms and behavior, which followed his return from service in the Republic of Vietnam. Moreover, the Appellant and her children are competent to relay the symptoms displayed by the late Veteran after his active duty Navy service. However, the late Veteran, Appellant, and their children do not possess the education, training, and experience necessary to competently provide a diagnosis for the symptoms displayed by the Veteran, because this knowledge simply falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1733 n. 4 (lay persons not competent to diagnose cancer). As noted above, to grant the Appellant’s appeal, the Board must identify three requisite claim elements: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. §3.303 (a). After carefully and deliberately reviewing the Veteran’s claims file, the Board does not identify a competent PTSD diagnosis. As the Board noted above, in August 2008, after examining the Veteran and considering his military experiences and stressors, a psychiatrist concluded that the Veteran did not currently demonstrate the symptoms for a diagnosis for any acquired psychiatric disability, to include PTSD. Ultimately, the Veteran’s claims file does not reveal non-government or government medical treatment notes and/or examinations that provide a requisite PTSD diagnosis for this entitlement to service-connection claim. Ultimately, the Board finds that the preponderance of the evidence stands counter to the Appellant’s posttraumatic stress disorder claim. Since the preponderance of the evidence is against this PTSD claim, the provisions of 38 U.S.C. § 5107(b), regarding reasonable doubt, are not applicable. The Appellant’s claim of   entitlement to service connection for PTSD must be denied, because the preponderance of the evidence weighs against her claim. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD RLBJ, Associate Counsel