Citation Nr: 0514803 Decision Date: 06/01/05 Archive Date: 06/15/05 DOCKET NO. 03-34 124A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to restoration of service connection for post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for squamous cell carcinoma of the neck. ATTORNEY FOR THE BOARD C. L. Wasser, Counsel INTRODUCTION The appellant served in the US Army Reserve, including a period of initial active duty for training (ACDUTRA) from June 18, 1964 to November 20, 1964. This case comes to the Board of Veterans' Appeals (Board) on appeal from a July 2003 decision by the RO in Washington, DC which severed service connection for PTSD, and which denied service connection for squamous cell carcinoma of the neck. This case was forwarded to the Board by the RO in Pittsburgh, Pennsylvania. The Board also notes that by a letter dated in July 2003, the appellant appears to be raising a claim for entitlement to service connection for blackouts. That issue is not currently on appeal and is referred to the RO for appropriate action. FINDINGS OF FACT 1. In October 1998, the RO established service connection for PTSD, effective in February 1995. 2. In a February 2003 rating decision, the RO proposed to sever service connection for PTSD, and in a July 2003 rating decision, the RO severed service connection for PTSD, effective October 1, 2003. 3. The October 1998 rating decision which granted service connection for PTSD was reasonably supported by the evidence of then of record and the pertinent law and regulations in effect at that time. 4. The appellant's squamous cell carcinoma of the neck, first manifested many years after service, is not of service origin or related to any incident of service. CONCLUSIONS OF LAW 1. Service connection for PTSD is restored. 38 U.S.C.A. §§ 101(24), 1110 (West 2002); 38 C.F.R. § 3.304(f) (1998); 38 C.F.R. §§ 3.105(d), 3.303 (2004). 2. Squamous cell carcinoma of the neck was not incurred in or aggravated by service nor may it be presumed to have been incurred in service. 38 U.S.C.A. §§ 101(24), 1101, 1110, 1112, 1113. (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSION There has been a significant change in the law with the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000). See, 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002). This law eliminates the concept of a well-grounded claim, and redefines the obligations of VA with respect to the duty to assist. The new law also includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The final rule implementing the VCAA was published on August 29, 2001. 66 Fed. Reg. 45,620-32 (Aug. 29, 2001) (codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a)). The Board notes that a decision promulgated on September 22, 2003, Paralyzed Veterans of America v. Secretary of Veterans Affairs, 345 F.3d 1334 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Court) invalidated the 30-day response period contained in 38 C.F.R. § 3.159(b)(1) as inconsistent with 38 U.S.C.§ 5103(b)(1). The Court made a conclusion similar to the one reached in Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339, 1348 (Fed. Cir. 2003) (reviewing a related Board regulation, 38 C.F.R. § 19.9). The Court found that the 30-day period provided in § 3.159(b)(1) to respond to a VCAA duty to notify is misleading and detrimental to claimants whose claims are prematurely denied short of the statutory one-year period provided for response. With respect to Paralyzed Veterans of America v. Secretary of Veterans Affairs, on December 16, 2003, the President signed H.R. 2297, the Veterans Benefits Act of 2003 (the Act). Section 701 of the Act contains amendments to 38 U.S.C. §§ 5102 and 5103. The Act contains a provision that clarifies that VA may make a decision on a claim before the expiration of the one-year VCAA notice period. Veterans Benefits Act of 2003, P.L. 108- __, Section 701 (H.R. 2297, December 16, 2003). The record reflects that VA has made reasonable efforts to notify the veteran of the information and evidence needed to substantiate his claims. The veteran was provided with a copy of the rating decision noted above, as well as statements of the case dated in July 2003 and July 2004, and a supplemental statement of the case dated in July 2004. He was furnished with VCAA letters in October 2002, December 2002, and April March 2004. These documents, collectively, provide notice of the law and governing regulations, as well as the reasons for the determination made regarding his claims. By way of these documents, the veteran was also specifically informed of the cumulative evidence already having been previously provided to VA or obtained by VA on his behalf. He was also informed of what evidence the VA would obtain. All available records have been obtained and associated with the claims folder. The veteran received multiple VA examinations. The Board notes that some of the VCAA letters were mailed to the appellant subsequent to the appealed rating decision in violation of the VCAA. The Board, however, finds that in the instant case the appellant has not been prejudiced by this defect. In this regard, the Board notes the appellant was provided notice of the division of responsibility in obtaining evidence pertinent to the case and ample opportunity to submit and/or identify such evidence. Therefore, under the circumstances, the Board finds that any error in the implementation of the VCAA is deemed to be harmless error. VA has satisfied both its duty to notify and assist the veteran in this case and adjudication of this appeal at this juncture poses no risk of prejudice to the veteran. See, e.g., Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Factual Background The appellant served in the US Army Reserve, including an initial period of ACDUTRA from June 18, 1964 to November 20, 1964. His service medical records do not show the presence of cancer or a psychiatric disorder. Private medical records dated from 1968 to 1969 from Royal United Hospital reflect that the appellant was treated, including hospitalization, for spasmodic torticollis (a neck condition), of neurotic origin, with evidence of disturbed personality development from early childhood. He was also treated for anxiety and tension. By a letter dated in January 1995, a private physician, Dr. L, indicated that he was the appellant's general practitioner. He noted that in 1968 and 1969, the veteran was treated for anxiety and stress, and interviews with a psychiatrist showed a psychopathology of anxiety over a number of years. He noted that he was not the appellant's doctor at that time, and opined that it seemed likely that the appellant's psychiatric illness at that time could have been precipitated by stress and anxiety in the preceding years. In February 1995, the appellant filed a claim for service connection for PTSD, which he asserted began in 1968 as a result of basic training from June to August 1964. He said he was not treated for PTSD in service, and was first treated for this condition in 1968. He contended that during his basic training in 1964, he was humiliated by aggressive officers and sergeants who harassed him every day in a very brutalizing way. He said he was taunted and abused physically. He stated that he did not complain at the time, but now felt he was harassed and emotionally abused at that time, which led to his PTSD. The record shows that when the appellant filed his claim he was and still is residing in England. A July 1995 psychiatric report reflects that the appellant was examined for VA purposes. The appellant reported that during a training session, an infantryman was blown up. The appellant learned of this event, but did not witness it himself. He described basic training as a brutalizing and humiliating event. He complained about emotional torment. He was aware that the colleagues with whom he was training were coming backing body bags. The examiner, Dr. L., indicated that the appellant had a long history of depression and anxiety, and currently had these conditions. He opined that the appellant's history met the criteria for PTSD, and noted that the appellant had direct personal experience of life-threatening events including training under live ammunition, and also learned of the violent death of a colleague through this experience. By a statement dated in September 1995, the appellant listed his claimed in-service stressors, all of which involved his basic training at Fort Dix. He contended that one of his friends was blown up during basic training on the grenade firing range, together with his instructor. He said he could not remember his friend's name. He stated that he witnessed another friend's arm being pierced with a bayonet. By letters dated in June 1996 and November 1997, the U.S. Armed Services Center for Research of Unit Records (USASCRUR) indicated that a search of records at Fort Dix revealed no record of grenade or bayonet incidents during the period from June to August 1964, as alleged by the appellant. USASCRUR noted that in order to search casualty records, the appellant must provide more specific information, including names. Finally, it was noted that anecdotal incidents, although they might be true, were not researchable, since in order to be researched, incidents must be reported and documented. USASCRUR noted that claimed stressors such as the appellant's reports of being pushed, kicked, and forced to crawl in civilian attire or his being verbally abused were seldom found in the combat records. The first medical evidence of cancer of the neck is dated in the late 1990s. Private medical records dated in 1998 and 1999 reflect treatment for squamous cell carcinoma of the neck. By a letter dated in May 1998, Dr. L. indicated that he examined the veteran in April 1998 again for VA. The appellant provided detailed information regarding his training with live ammunition, mortars, and grenades. He diagnosed PTSD, which he related to the veteran's reported in-service stressors, specifically, witnessing another soldier receiving a bayonet wound in the arm, hearing about another soldier being blown up by a grenade, and training exercises with live ammunition. In an October 1998 rating decision, the RO observed that the veteran had been diagnosed with PTSD. The RO indicate that the stressors identified were training under live ammunition with grenades and mortars exploding, witnessing another soldier receiving a bayonet wound in the arm, and hearing about another soldier being blown up by a grenade. The RO noted that a letter from the Department of the Army indicated that the appellant's reported stressors could not be verified since specific names could not be furnished. The RO concluded that reasonable doubt had been resolved in favor of the claimant, and granted service connection for PTSD. By a letter dated in June 1999, Dr. L. indicated that the veteran had been diagnosed with squamous cell carcinoma of the neck, and had undergone a radical dissection of the lymph nodes in his neck. He added that the appellant "...has often had problems with his neck, resulting in a tightening of the structures there which has been related to stress and anxiety. This in itself was a form of post traumatic stress disorder, for which he received compensation from the Veterans Association. I am not aware of any proven link between muscle spasms in the neck and cancer in the neck, but obviously since [the appellant's] longstanding problems have always been in his neck and now he has a cancer there, it is of some concern." In July 1999, the RO received the appellant's claim for service connection for neck cancer. By a letter dated in October 1999, Dr. W. noted that the veteran had been diagnosed with squamous carcinoma of lymph glands in his neck in April 1999. By a letter dated in October 2002, the appellant asserted that he had neck problems since the 1960s, after his military service. He said he first sought treatment for a lump on the side of his neck in February 1998, and was diagnosed with cancer of the neck in January 1999. By a letter dated in January 2003, the appellant asserted that his PTSD was linked with his neck cancer. In a statement dated in January 2003, he contended that his squamous cell carcinoma was related to in-service exposure to gases in a gas chamber. By a letter dated in February 2003, Dr. W. indicated that the appellant satisfied the criteria for a diagnosis of PTSD. In a February 2003 rating decision, the RO proposed severance of service connection for PTSD, on the basis that there was clear and unmistakable error in an October 1998 rating decision which granted service connection for PTSD without verification of the appellant's alleged stressors. The appellant was notified of this decision in March 2003, and he was given the opportunity to submit additional evidence. In April 2003, the RO received a statement from the appellant to the effect that a recent psychiatric examination was inadequate. He also submitted duplicative evidence. In a July 2003 rating decision, the RO severed service connection for PTSD, effective October 1, 2003. By a statement dated in September 2003 (and apparently received in November 2003), the appellant again contended that he was subjected to physical and emotional abuse at Fort Dix, and that this treatment led to his PTSD. In June 2004, the appellant essentially reiterated his prior assertions regarding his claimed in-service stressors. He could not recall the names of any individuals, or any dates of the reported events. Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2004). The term "active service" includes active duty, any period of active duty for training during which the individual concerned was disabled from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training during which the individual concerned was disabled from an injury incurred or aggravated in line of duty. 38 U.S.C.A. §§ 101(24) (2004). Restoration of Service Connection for PTSD The RO has severed service connection for PTSD, on the basis that it was clear and unmistakable error for service connection to be awarded for this disability in an October 1998 RO decision. The appellant contends that service connection should be restored for PTSD, as he still has PTSD and as he believes it is related to military service. The regulation regarding severance of service connection provides that once service connection had been granted, it could be severed only upon the showing by VA (with the burden of proof upon the Government) that the rating decision granting service connection was clearly and unmistakably erroneous. 38 C.F.R. § 3.105(d); VA's burden in severing service connection under § 3.105(d) is the same as a claimant's burden in attempting to overturn a final decision on the basis of clear and unmistakable error under 3.105(a). See Baughman v. Derwinski, 1 Vet. App. 563, 566 (1991) (holding that § 3.105(d) places at least as high a burden of proof on VA when it seeks to sever service connection as § 3.105(a) places upon veteran seeking to have an unfavorable decision overturned). In this case, therefore, the determination is whether the original grant of service connection was clearly and unmistakably erroneous at the time the determination was made. There is a three- pronged test to determine whether "clear and unmistakable error" was present under 38 C.F.R. § 3.105(a) in a prior determination: (1) either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied; (2) the error must be undebatable and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made; and (3) a determination that there was clear and unmistakable error must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)). To determine whether CUE was present in a prior determination, either the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied; the error must be undebatable and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made; and a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. See Pierce v. Principi, 240 F.3d 1348 (Fed.Cir. 2001); Baldwin v. West, 15 Vet. App. 302 (2001), Damrel v. Brown, 6 Vet. App. 242 (1994); Russell v. Principi, 3 Vet. App. 310 (1992). The Board notes that service connection for PTSD has been in effect for less than ten years. Accordingly, the service- connected status of the appellant's PTSD is not protected. See 38 C.F.R. § 3.957 (2004). In this case, the record establishes that the RO satisfied all procedural requirements specified by regulation where severance of service connection is contemplated, and provided the appellant additional notice and assistance beyond the basic procedural due process specifically required by regulation. 38 C.F.R. § 3.105(d) (2004). At the time of the October 1998 RO decision, governing regulation provided that in order to establish service connection for PTSD, there must be medical evidence establishing a clear diagnosis of the condition, credible supporting evidence that the claimed in-service stressor actually occurred and a link, established by medical evidence, between current symptomatology and the claimed in- service stressor. If the claimed stressor is related to combat, service department evidence that the veteran engaged in combat or that the veteran was awarded the Purple Heart, Combat Infantryman Badge, or similar combat citation will be accepted, in the absence of evidence to the contrary, as conclusive evidence of the claimed in-service stressor. 38 C.F.R. § 3.304(f) (1998). The evidence is clear that the appellant has a diagnosis of PTSD based on non-combat stressors related to his basic training during his initial period of ACDUTRA. The appellant did not serve on active duty, and did not serve in combat. At the time of the October 1998 RO decision, the threshold evidentiary requirement was that there was credible supporting evidence that the claimed in-service stressors actually occurred, as required by 38 C.F.R. § 3.304(f) (1998). The evidence available to the RO for consideration at that time were the appellant's statements, the facts and circumstances of the appellant's service, and the VA examinations which confirmed the presence of PTSD. Several of the appellant's stressors could not be verified. However, the training under live ammunition, including grenades, and explosions, is verified in that it is consistent with the training received in basic training. The psychiatrist during both examinations based the diagnosis in part on this stressor. The RO resolving reasonable doubt in the veteran's favor found, in effect, that there was credible supporting evidence. While the October 1968, decision may be viewed as somewhat tenuous in nature, and the Board may question the weight assigned to the evidence cited in support of the favorable decision, mere difference of opinion in the evaluation of evidence is not a sufficient basis to render the prior decision clearly and unmistakably erroneous. As noted above, the error must be undebatable, one which reasonable minds could only conclude that the original decision was fatally flawed at the time it was made. After review of the record, the Board concludes that the October 1998 decision was not clearly and unmistakably erroneous. Accordingly, in view of the above, restoration of service connection for PTSD is warranted. Service Connection for Squamous Cell Carcinoma of the Neck Where a veteran served continuously 90 days or more during a period of war or during peacetime service after December 31, 1946, and carcinoma becomes manifest to a degree of at least 10 percent within one year from the date of termination of service, such disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such a disorder during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2003). The veteran claims service connection for squamous cell carcinoma of the neck which he asserts was incurred during military service. Service medical records are negative for cancer. The first medical evidence of carcinoma of the neck is dated in 1998, more than 30 years after separation from service. The veteran has asserted that he incurred squamous cell carcinoma of the neck due to military service. As a layman, he is not competent to render an opinion regarding diagnosis or etiology. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). In a June 1999 letter, Dr. L. suggested that the appellant's longstanding neck muscle spasms were related to PTSD and thereby to service, and added that it was of some concern that he now had neck cancer, although he indicated that he was not aware of any proven link between neck spasms and neck cancer. This medical statement does not affirmatively link the veteran's current neck cancer with military service or the service connected PTSD. The weight of the credible evidence demonstrates that the claimant's current squamous cell carcinoma of the neck began many years after service and was not caused by any incident of service. Squamous cell carcinoma of the neck was not incurred in or aggravated by service. As the preponderance of the evidence is against the claim for service connection, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for PTSD is restored subject to the law and regulations governing the payment of monetary benefits. Service connection for squamous cell carcinoma of the neck is denied. ____________________________________________ ROBERT P. REGAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs