Citation Nr: 21009483 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 19-35 446 DATE: February 22, 2021 ORDER Entitlement to service connection for Posttraumatic Stress Disorder (PTSD) is denied. FINDING OF FACT There is no current diagnosis of PTSD. CONCLUSION OF LAW The criteria for service connection of PTSD are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Navy from August 1988 to August 1992. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a February 2018 rating decision by the Regional Office (RO) of the United States Department of Veterans Affairs (VA). The Board notes that typically the claim would be recharacterized in accordance with Clemons v. Shinseki, 23 Vet. App. 1 (2009), to reflect that the claim of service connection for one acquired psychiatric disorder includes claims for all potentially diagnosed disorders. Here, however, service connection is already established for schizophrenia, rated 100 percent disabling, and so the claim is limited to consideration of PTSD alone. Notably, in the VA Form 9, the Veteran requested a hearing with the Board regarding this issue. However, in August, September, and November 2020, the Veteran sent correspondence seeking that this hearing be cancelled. According, the Board will proceed with adjudication. In May 2020, the Veteran submitted a VA Form 21-22a appointing a private attorney. However, in July 2020, the private attorney requested to withdraw as the Veteran’s representative. In August 2020, the Veteran sent correspondence acknowledging that the attorney had withdrawn and requested that the Board continue and make the decision on his behalf. As such, the Veteran is recognized as proceeding pro se. Additionally, the Veteran submitted a Supplemental Claim in December 2019, attempting to opt-in to the new AMA appellate system. However, this claim was not submitted within one year of the rating decision on appeal, or within 60 days of the Statement of the Case (SOC). As such, the opt-in was not timely. 38 C.F.R. § 3.2400. Furthermore, the Veteran had already successfully perfected the Legacy appeal in his November 2019 VA Form 9. In December 2020, the Veteran attempted to file a VA Form 10182. However, in February 2021, the Board sent the Veteran a letter describing that this opt-in also was not timely. Accordingly, this matter will be decided under the Legacy appellate system. VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). The duty to notify and assist was satisfied by notices included in the Fully Developed Claim (VA Form 21-526EZ) acknowledged by the Veteran in his December 2017 claim. The RO associated the Veteran’s service and VA and private outpatient treatment records with the claims file. In November 1996, the Veteran’s mother submitted a letter specifically identifying private health inpatient and outpatient treatment providers that had treated the Veteran for his mental health. At the time, attempts were not made to obtain them. However, in the December 2018 Board remand addressing schizophrenia, instructions were specifically included requesting that attempts be made to obtain these records. In response to a March 2019 Subsequent Development Letter requesting these records, the Veteran provided a VA Form 21-4142 identifying several records. Although attempts were made to obtain these records, they were determined to be unavailable. In May 2019, the Veteran requested that the matter be adjudicated without the private records. Notably, one of these private providers was determined to be “unavailable” because fees were required for the records to be obtained. The Veteran was not notified of this. However, these requested records were previously associated with the Veteran’s claims file in 1999. Accordingly, the Veteran is not prejudiced by this failure to notify. All other released or submitted private treatment records have been associated with the claims file. No other relevant records have been identified and are outstanding. Appropriate and necessary examinations were afforded the Veteran, and are adequate for evaluation, as they include needed findings to permit application of the rating schedule and identification of current disability. As such, VA has satisfied its duty to assist with the procurement of relevant records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In order to establish service connection on a direct basis, the record must contain competent evidence of: (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). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is 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. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). A layperson is generally not capable of opining on matters requiring medical knowledge. See Bostain v. West, 11 Vet. App. 124, 127 (1998). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. The Veteran contends that he has PTSD, and that it is directly related to an incident in-service where a fellow service member committed suicide. He stated in June 2016 that the person’s “blood was running down the port side of the ship.” In a subsequent statement from November 2017, the Veteran reported that he had stepped in the blood. He has reported recurring dreams of seeing the blood. However, the Veteran is not competent to provide such a diagnosis, as that requires medical expertise. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Notably, the Veteran’s VA and private treatment records have consistently diagnosed him with schizophrenia. A PTSD diagnosis has not been provided. The Veteran was first afforded a VA mental disorders examination in September 2006, at which time the schizophrenia diagnosis was confirmed. The Veteran’s April 2007 VA treatment records include a note made by a social worker stating that the Veteran was diagnosed with PTSD while in the military, apparently based on his report. However, such a diagnosis is not found in the Veteran’s service treatment records. Mere repetition of the allegations in a medical record does not transform them into competent medical evidence. LeShore v. Brown, 8 Vet. App. 406, 409 (1995). In May 2017, there is another notation from a social worker that the Veteran has a diagnosis for schizophrenia, unspecified trauma/stressor related disorder. However, the trauma/stressor related disorder was not confirmed. In November 2014, the Veteran was reported as having PTSD symptoms, including recurrent nightmares, flashbacks, irritability, and hypervigilance. In December 2017, the Veteran’s dreams “of walking through friend’s blood” were identified as PTSD-like symptoms. However, the Veteran’s treatment records continue to reflect that he has not been afforded an actual PTSD diagnosis. Rather, in May 2019, a psychiatrist noted that the Veteran reported some trauma symptoms, but that it seemed as though he did not meet the full criteria for PTSD on exploring them. Additionally, in September 2019, the Veteran was afforded another VA mental disorders examination. Here, the Veteran’s diagnosis of schizophrenia, unspecified, was again confirmed. The examiner found that the Veteran did not have more than one mental disorder diagnosed. Although it was noted that the Veteran had a history of a Traumatic Brain Injury (TBI), the examiner specifically found that the Veteran had denied any residual symptoms from a TBI, and that therefore, all symptoms presented on the examination were due to the diagnosed schizophrenia, which is, as is noted above, already service-connected. In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Accordingly, due to the lack of current diagnosis for PTSD, service connection for PTSD must be denied. The Veteran is only diagnosed with one acquired psychiatric disorder, schizophrenia, Which accounts for the Veteran’s psychiatric symptomatology. Mittleider v. West, 11 Vet. App. 181 (1998). Therefore, service connection for PTSD is not warranted. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.P. Faris The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.