Citation Nr: 0733098 Decision Date: 10/22/07 Archive Date: 11/02/07 DOCKET NO. 06-28 875 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Kentucky Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Connolly Jevtich, Counsel INTRODUCTION The veteran had active service from November 1965 to September 1968. The veteran subsequently had Reserve duty. He was reassigned from the Selected Reserve to the Retired Reserve by reason of unit inactivation in 1997. This case is before the Board of Veterans' Appeals (Board) on appeal from an August 2003 rating decision by the Louisville, Kentucky, Regional Office (RO) of the Department of Veterans Affairs (VA). In June 2007, the veteran testified before the undersigned at a Travel Board hearing. The veteran has raised the issue of service connection for a psychiatric disorder, other than PTSD, to include depression, an anxiety disorder, and substance abuse. The Board refers this matter to the RO for appropriate action. FINDING OF FACT The veteran does not have PTSD. CONCLUSION OF LAW PTSD was not incurred in active military service. 38 U.S.C.A. §§ 101, 106, 1101, 1110, 1131 (West 200 & Supp. 2006); 38 C.F.R. §§ 3.303, 3.304(f), 4.125 (2007). 38 U.S.C.A. §§ 101, 106, 1101, 1110, 1131 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.303, 3.304 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) With respect to the claimant's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Prior to the initial adjudication of the claimant's claim, a letter dated in March 2003 fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). An additional letter was issued in January 2007. The claimant was aware that it was ultimately the claimant's responsibility to give VA any evidence pertaining to the claim. The VCAA letters told the claimant to provide any relevant evidence in the claimant's possession. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). ). In particular, the VCAA notifications: (1) informed the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) informed the claimant about the information and evidence that VA will seek to provide; (3) informed the claimant about the information and evidence that the claimant is expected to provide; and (4) requested that t claimant provide any evidence in his possession that pertains to the claims, or something to the effect that the claimant should "give us everything you've got pertaining to your claim." See Pelegrini II. The United States Court of Appeals for the Federal Circuit (Federal Circuit) recently held that a statement of the case (SOC) or supplemental statement of the case (SSOC) can constitute a "readjudication decision" that complies with all applicable due process and notification requirements if adequate VCAA notice is provided prior to the SOC or SSOC. See Mayfield v. Nicholson, No. 2007-7130 (Fed. Cir. Sept 17, 2007) (Mayfield III). As a matter of law, the provision of adequate VCAA notice prior to a readjudication "cures" any timing problem associated with inadequate notice or the lack of notice prior to an initial adjudication. See Mayfield III, (citing Mayfield v. Nicholson, 444 F.3d at 1328, 1333- 34). In any event, the Board finds that any deficiency in the notice to the claimant or the timing of these notices is harmless error. See Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding that the Board erred by relying on various post-decisional documents to conclude that adequate 38 U.S.C.A. § 5103(a) notice had been provided to the claimant, the Court found that the evidence established that the claimant was afforded a meaningful opportunity to participate in the adjudication of the claim, and found that the error was harmless, as the Board has done in this case.) If any notice deficiency is present, the Board finds that the presumption of prejudice on VA's part has been rebutted in this case by the following: (1) based on the communications sent to the veteran over the course of this appeal, the claimant clearly has actual knowledge of the evidence he is required to submit in this case; and (2) based on the claimant's contentions as well as the communications provided to the claimant by VA, it is reasonable to expect that the claimant understands what was needed to prevail. See also Simmons v. Nicholson, 487 F. 3d 892 (2007); see also Sanders v. Nicholson, 487 F. 3d 881 (2007). VA also fulfilled its duty to obtain all relevant evidence with respect to the issue on appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The claimant's service medical records, VA medical treatment records, and identified private medical records have been obtained, to the extent available. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There is no indication in the record that any additional evidence, relevant to the issue decided herein, is available and not part of the claims file. The claimant was also afforded a VA examination in August 2003 for compensation purposes. 38 C.F.R. § 3.159(c)(4). The records satisfy 38 C.F.R. § 3.326. Since the Board has concluded that the preponderance of the evidence is against the claim of service connection, any questions as to the appropriate disability rating or effective date to be assigned are rendered moot, and no further notice is needed. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. This includes injuries or diseases incurred during active duty for training (ADT), and injuries during inactive duty training (IDT). See 38 U.S.C.A. §§ 101(24), 106. Reserve and National Guard service generally means ADT and IDT. ADT is full time duty for training purposes performed by Reservists and National Guardsmen pursuant to 32 U.S.C.A. §§ 316, 502, 503, 504, or 505. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c). Basically, this refers to the two weeks of annual training, sometimes referred to as "summer camp," that each Reservist or National Guardsman typically performs each year. It can also refer to the Reservist's or Guardsman's initial period of training. IDT includes duty, other than full-time duty, performed for training purposes by Reservists and National Guardsmen pursuant to 32 U.S.C.A. §§ 316, 502, 503, 504, or 505. 38 U.S.C.A. § 101(23); 38 C.F.R. § 3.6(d). Basically, this refers to the twelve four-hour weekend drills that each Reservist or National Guardsman must perform each year. These drills are deemed to be part-time training. Generally, an individual who has only Reserve or National Guard service (ADT or IDT with no active duty) is not a "veteran" as legally defined. In the service connection context, for example, this means that the presumption of soundness upon entry into service and the presumptive service connection provisions of 38 C.F.R. § 3.307, applicable to active duty, would not apply to ADT or IDT. 38 U.S.C.A. §§ 1111, 1112, 1137; 38 C.F.R. § 3.307. Further, VA regulation provides that, with chronic disease shown as such in service (or within an applicable presumptive period under section 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of an evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. 3.303(b). A claim for service connection generally requires competent evidence of a current disability; proof as to incurrence or aggravation of a disease or injury in service, as provided by either lay or medical evidence, as the situation dictates; and competent evidence as to a nexus between the inservice injury or disease and the current disability. Cohen v. Brown, 10 Vet. App. 128, 137 (1997); Layno v. Brown, 6 Vet. App. 465 (1994). More specific provisions apply to PTSSD claims. Service connection for PTSD requires medical evidence establishing (1) a diagnosis of the disorder, (2) credible supporting evidence that the claimed in-service stressor(s) actually occurred, and (3) a link, established by medical evidence, between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). The evidence necessary to establish the occurrence of a recognizable stressor during service to support a diagnosis of PTSD will vary depending upon whether the veteran engaged in "combat with the enemy." See 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(f); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). Participation in combat, a determination that is to be made on a case-by-case basis, requires that the veteran have personally participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. See VAOPGCPREC 12-99 (October 18, 1999). If VA determines the veteran engaged in combat with the enemy and his alleged stressor is combat-related, then his lay testimony or statement is accepted as conclusive evidence of the stressor's occurrence and no further development or corroborative evidence is required - provided that such testimony is found to be "satisfactory," i.e., credible and "consistent with circumstances, conditions or hardships of service." See 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(f); Zarycki, 6 Vet. App. at 98. If, however, VA determines either that the veteran did not engage in combat with the enemy or that he did engage in combat, but that the alleged stressor is not combat related, then his lay testimony, in and of itself, is not sufficient to establish the occurrence of the alleged stressor. Instead, the record must contain evidence that corroborate his testimony or statements. See Zarycki, 6 Vet. App. at 98; West (Carlton) v. Brown, 7 Vet. App. 70, 76 (1994); Zarycki, 6 Vet. App. at 98 (1993). In Doran v. Brown, 6 Vet. App. 283, 290-91 (1994), the Court stated that "the absence of corroboration in the service records, when there is nothing in the available records that is inconsistent with other evidence, does not relieve the Board of its obligations to assess the credibility and probative value of the other evidence." Further, to warrant service connection for PTSD, 38 C.F.R. § 3.304(f) provides that the diagnosis must conform to 38 C.F.R. § 4.125(a), and follow the DSM-IV. Moreover, the diagnosis of PTSD must be based on demonstrated combat status or on verified stressors. In order for service connection to be established, the veteran must have a current diagnosis of the claimed disease or injury related to service. In addition, "[a] determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service." Watson v. Brown, 4 Vet. App. 309, 314 (1993). This principle has been reaffirmed by the U.S. Court of Appeals for the Federal Circuit, which has stated, "a veteran seeking disability benefits must establish . . . the existence of a disability [and] a connection between the veteran's service and the disability." Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that the VA's and the Court's 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 and therefore the decision based on that interpretation must be affirmed); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In the absence of proof of a present disability, there can be no valid claim. Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). 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. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To do so, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). The veteran contends that he has PTSD as a result of stressful experiences he had while serving in Vietnam. The veteran's personnel file and his unit history have been obtained. The RO has verified that the veteran's unit underwent enemy attack to include in March 1968. One of the veteran's alleged stressors is being subjected to enemy attack and mortar fire. Thus, he has a verified stressor and the second element of his claim of service connection for PTSD, credible supporting evidence that the claimed in- service stressor actually occurred, has been met. However, the other two elements must also be met. The veteran had active service from November 1965 to September 1968 to include service in Vietnam. The veteran subsequently had Reserve service for decades. The veteran's service medical records from his period of active duty do not show any complaints, treatment, findings, or diagnosis of a psychiatric disorder. The records from his Reserve duty were negative until April 1997, when the veteran reported that he had depression or excessive worry. However, the psychiatric evaluation was normal. There was no diagnosis of PTSD while the veteran served on active duty or Reserve duty. Private medical records dated in the 1990's reveal that the veteran made psychiatric complaints. Depression, anxiety, and symptoms consistent with a panic disorder were noted. There was no diagnosis of PTSD. VA outpatient records show that the veteran was seen in September 2002 for psychiatric complaints. The initial impression was depression/anxiety/PTSD. The PTSD clinic was consulted. However, it was determined that the veteran did not meet the DSM IV criteria for PTSD. The veteran indicated that he was not interested in participating in psychotherapy. In March 2003, the veteran was seen for psychiatric complaints and the initial impression was again depression/anxiety/PTSD. In August 2003, the veteran was afforded a VA examination in order to assess whether he had PTSD. The claims file was reviewed. A mental status functioning examination was performed. The examiner identified the current PTSD symptoms. The examiner noted that based solely on the content of what the veteran presented to the examiner, the veteran would appear to meet the criteria for PTSD. However, the examination itself had to be considered. The examiner pointed out that the veteran did not display any discomfort or distress on examination and his affect was euthymic. Second, the veteran's current report was inconsistent with information he previously provided to VA medical personnel. Third, the veteran did not appear to be experiencing significant problems with occupational functioning and his current social relationships were positive with family and friends. Accordingly, the examiner found that the veteran had a cannabis abuse depressive disorder, not otherwise specified, but there was no diagnosis of PTSD. Thus, although the veteran's complaints and history were consistent with PTSD, the DSM IV criteria were not met on the psychiatric examination. Thereafter, the veteran continued to complain of depression/anxiety/PTSD symptoms. In July 2004, he was evaluated. It was noted that on the August 2003 examination, the veteran did not meet the criteria for PTSD. On this evaluation, it was determined that the veteran had a depressive disorder, not otherwise specified, and cannabis abuse in early full remission. In a later entry that month, it was noted that the veteran had an anxiety disorder, not otherwise specified, with features of depression and PTSD. Thereafter, the veteran continued to complain of depression/anxiety/PTSD, as well as problems with substance abuse. The diagnosis of an anxiety disorder, not otherwise specified, was continued. The veteran maintains that stressors experienced in service resulted in PTSD. He presented contentions in written correspondence and at a June 2007 Travel Board hearing. The veteran described his inservice stressful events. He described having difficulty with loud noises, bad memories of Vietnam, flashbacks, past substance abuse and relationship problems. He said that he had quit his employment after 19 years, and that he was taking psychiatric medication. For purposes of a compensation claim, a claimant can attest to factual matters of which he had first-hand knowledge, e.g., experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, as a lay person without medical training, a claimant generally is incapable of making medical conclusions; thus, his statements regarding causation are not competent. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). Although the veteran is competent to report what comes to him through his senses, he does not have medical expertise. See Layno. Therefore, he cannot provide a competent opinion regarding diagnosis and causation. However, lay evidence is one type of evidence that must be considered and competent lay evidence can be sufficient in and of itself. The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). This would include weighing the absence of contemporary medical evidence against lay statements. In Barr v. Nicholson, 21 Vet App 303 (2007), the Court indicated that varicose veins was a condition involving "veins that are unnaturally distended or abnormally swollen and tortuous." Such symptomatology, the Court concluded, was observable and identifiable by lay people. Because varicose veins "may be diagnosed by their unique and readily identifiable features, the presence of varicose veins was not a determination 'medical in nature' and was capable of lay observation." Thus, the veteran's lay testimony regarding varicose vein symptomatology in service represented competent evidence. In Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007), the Federal Circuit Court determined that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (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. The relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is a factual issue. Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). See Barr. The issue does not involve a simple diagnosis. See Jandreau. The veteran is not competent to assess if he has PTSD that is related to service. The Board may not base a decision on its own unsubstantiated medical conclusions but, rather, may reach a medical conclusion only on the basis of independent medical evidence in the record. Hensley v. Brown, 5 Vet. App. 155 (1993). Neither the Board nor the veteran is competent to supplement the record with unsubstantiated medical conclusions. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Conversely, health professionals are experts and are presumed to know the requirements applicable to their practice and to have taken them into account in providing a diagnosis. Cohen v. Brown, 10 Vet. App. 128 (1997). The Board notes that VA outpatient records documented the complaints of PTSD and recognized that the veteran demonstrated features of PTSD. However, the diagnosis has been that the veteran has an anxiety disorder. Further, the VA examiner who conducted the August 2003 examination determined that the veteran did not meet the criteria for PTSD. The examiner based his opinion on a review of the claims file, the veteran's history, and a mental status examination. As such, the Board attaches the most probative value to this opinion, as it is well reasoned, detailed, consistent with other evidence of record, and included review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (Factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion.). This examination report is the only report that included a thorough review and discussion of the record. Therefore, as the most probative medical evidence has determined that the veteran does not meet the diagnostic criteria of DSM-IV, the Board cannot substitute its own medical judgment. The Board concludes for purposes of the appeal that the veteran does not have PTSD. As discusses, a diagnosis of PTSD is a required element for service connection. 38 C.F.R. § 3.304(f). As such, the first and third criteria necessary to establish service connection for PTSD are not met. Absent a current diagnosis, service connection is not warranted. A preponderance of the evidence is against the claim for service connection for PTSD. The benefit-of-the-doubt doctrine is inapplicable, and service connection must be denied. 38 U.S.C.A. § 5107(b); Gilbert, supra. ORDER Service connection is denied for PTSD. ____________________________________________ CHARLES E. HOGEBOOM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs