Citation Nr: 0816403 Decision Date: 05/19/08 Archive Date: 05/29/08 DOCKET NO. 03-15 276 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder (PTSD). 2. Evaluation of residuals of a right leg fracture, currently evaluated as 0 percent disabling. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Suzie S. Gaston, Counsel INTRODUCTION The veteran served on active duty in the United States Marine Corps from June 1964 to December 1968. This matter comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from a November 2002 rating decision, by the Waco, Texas, Regional Office (RO), which granted service connection for residuals, right leg fracture, evaluated as 0 percent disabling; however, the RO denied the claim for service connection for PTSD. The veteran perfected a timely appeal to that decision. In December 2005, the Board remanded the case to the RO for further evidentiary development. Following the requested development, a supplemental statement of the case (SSOC) was issued in May 2006. The Board notes that, in a statement in support of claim, dated in May 2003, the veteran requested a hearing before a Decision Review Officer (DRO). A hearing at the RO with a DRO was scheduled for March 2004, but the veteran failed to report for this hearing. However, by letter dated in March 2004, the veteran's representative indicated that the veteran was unavailable to attend the hearing, the veteran's request for a DRO is considered withdrawn. See 38 C.F.R. § 20.704(e) (2007). The veteran recently submitted new medical evidence to the Board in March 2008. In particular, the new evidence consisted of a medical statement from Kathy DeOrnellas, Ph.D., dated in February 2008, pertaining to the veteran's psychiatric disorder. The veteran did not waive RO review of this new evidence; however, in light of the favorable determination below, remand of the claim for service connection for PTSD for RO consideration of the evidence is not necessary. See 38 C.F.R. § 20.1304 (2007). The issue of entitlement to a compensable evaluation for residuals of a right leg fracture is addressed in the REMAND portion of the decision below, and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will contact the veteran if additional action is required on his part. FINDING OF FACT The veteran has PTSD which is attributable to events experienced in service. CONCLUSION OF LAW PTSD was incurred during the veteran's wartime service. 38 U.S.C.A. §§ 1110, 1154, 5103(a), 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist. The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim; to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide; and to request that the claimant provide any evidence in the claimant's possession that pertains to the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The U.S. Court of Appeals for Veterans Claims has held that VCAA notice should be provided to a claimant before the initial RO decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in an SOC or Supplemental SOC (SSOC). Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Court of Appeals for the Federal Circuit recently held that any error in a VCAA notice should be presumed prejudicial. VA bears the burden of rebutting the presumption, by showing that the essential fairness of the adjudication has not been affected because, for example, actual knowledge by the claimant cured the notice defect, a reasonable person would have understood what was needed, or the benefits sought cannot be granted as a matter of law. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). Here, the claimant has not demonstrated any error in VCAA notice, and therefore the presumption of prejudicial error as to such notice does not arise in this case. Id. In this case, VA satisfied its duty to notify by means of letters dated in February 2002 and May 2002 from the RO to the veteran which were issued prior to the RO decision in November 2002. Another letter was issued in January 2006. Those letters informed the veteran of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. The veteran was also asked to submit evidence and/or information in his possession to the RO. The Board finds that the content of the above-noted letter provided to the veteran complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify and assist. He was provided an opportunity at that time to submit additional evidence. In addition, the May 2003 SOC, the March 2004 SSOC, and the May 2006 SSOC each provided the veteran with an additional 60 days to submit additional evidence. Thus, the Board finds that the purpose behind the notice requirement has been satisfied because the veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claims. It also appears that all obtainable evidence identified by the veteran relative to his claims has been obtained and associated with the claims file, and that neither he nor his representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. It is therefore the Board's conclusion that the veteran has been provided with every opportunity to submit evidence and argument in support of his claims, and to respond to VA notice. As noted above, VCAA notification pre-dated adjudication of this claim. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005). The Board finds no prejudice to the veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the veteran has been prejudiced thereby). ). In addition, to whatever extent the decision of the Court in Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006), requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date, the Board finds no violation of essential fairness to the veteran in proceeding with the present decision, since the veteran was informed of the provisions of Dingess in July 2006. Accordingly, we find that VA has satisfied its duty to assist the veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claim under the VCAA. Therefore, no useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the veteran. The Court of Appeals for Veterans Claims has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Given the ample communications regarding the evidence necessary to establish entitlement to service connection for PTSD, given a prior Board remand, given that he has been provided all the criteria necessary for establishing service connection, and considering that the veteran is represented by a highly qualified veterans service organization, we find that any notice deficiencies are moot. See Conway v. Principi, 353 F.3d 1369, 1374 (2004). To that extent that there has been any presumed prejudicial preadjudicative notice error, if any, it did not affect the essential fairness of the adjudication now on appeal. II. Factual background. The record indicates that the veteran served on active duty from June 1964 to December 1968. His DD Form 214 reveals that he was awarded the National Defense Service Medal, the Vietnam Service Medal with 2 stars, and the Vietnam Campaign Medal with device. The DD Form 214 also shows that the veteran had a military occupational specialty (MOS) of FABtryman (related civilian occupation reported as ordinance man). The veteran's personnel records indicate that he was stationed in Vietnam from November 1965 to August 1966, and from March 1968 to November 1968; he participated in operations "Orange," "Lancaster II," "Saline II," "Napoleon/Saline," and "Scotland II." The service medical records, including the February 1964 enlistment examination, as well as the November 1968 separation examination, are negative for any complaints, findings or diagnoses of a psychiatric disorder. The veteran's claim of entitlement to service connection for PTSD (VA Form 21-526) was received in October 2001. Submitted in support of the veteran's claim were VA progress notes dated in 2001 and 2002. Received in April 2002 was a statement from the veteran wherein he stated that he was subject to a lot of incoming mortars; and, he did fear for his life on many occasions. The veteran indicated that, while in DaNang in April 1966, he had to pull dead bodies off a chopper. The veteran recalled seeing dead body bags lined up in rows. The veteran reported experiencing heavy mortar and rocket attacks. Received in November 2002 were copies of the veteran's military personnel records. These records indicate that: (1) on January 24, 1966, the veteran participated in operations ashore with elements of the 1st and 3rd Marine Divisions in direct support of he Republic of South Vietnam; (2) on January 24, 1966, the veteran participated in operation "Harvest Moon" Que Son Republic Vietnam; (3) on April 13, 1966, he participated in operation "Orange" in the Trung Phan Providence against insurgent communist (Viet Cong) forces; (4) on April 27, 1966, the veteran participated in defense of Battery position against insurgent communist "Hard Core" forces DaNang; (5) on May 18, 1968, the veteran participated in operation "Lancaster II" in Quang Tri province, in the Republic of Vietnam; (6) in May 1968, the veteran also participated in operations Saline II and Napoleon; and (7) in July 1968, he participated in operation Scotland II in Quang Tri Province in the Republic of Vietnam. On December 12, 2002, the veteran's primary care physician at the VA sent him to the mental health clinic for a PTSD evaluation. It was noted that the veteran was a member of the 3rd Battalion, 12th Marines, 3rd Marine Division. It was reported that he veteran was posted in Vietnam in October 1965; at that time, he was attached to a 105 Howitzer unit near DaNang, as well as moving around the countryside as artillery missions were required. The veteran reported that, on April 18, 1966, their gun position was attacked in night engagement; he described the vicious attack, with sappers and riflemen trying to destroy the unit's artillery pieces. The veteran described shooting the sappers who were attacking his gun when they were right at the gun pit; he described the wild scene with explosions, gunfire, and the screams of wounded and dying men. The veteran also described being involved in operations "Orange" and "Harvest Moon," and handling the wounded and dead as they arrived at his base on helicopters. The veteran reported being tormented over the years with intrusive recollections of combat events. He also reported experiencing dreams/nightmares, especially of "stacking bodies," feeling as though the combat events were happening again, and he reported fearfulness and sadness. Following a mental status examination, the examiner stated that the veteran was a Marine Combat veteran with 22 months in Vietnam. He described heavy exposure to Combat, handling dead and wounded Americans, and seeing many comrades killed. The VA examiner stated that the veteran's history since Vietnam supports the diagnosis of PTSD, chronic, severe. On the occasion of a VA examination for evaluation of PTSD in March 2003, the veteran reported being stationed in Vietnam in 1965; he also reported participating in many operations, some of which required him to handle wounded, disabled or dead bodies. The veteran indicated that, upon attending the funeral of one of his buddies, he requested to go back to Vietnam. Following a mental status examination, the impression was substance abuse and depression, NOS. In June 2003, the veteran was seen at the VA mental health clinic, with complaints of worsened PTSD symptoms, including intrusive Vietnam material. Following a mental status examination, the staff psychiatrist indicated that the diagnosis continues as PTSD, chronic, severe. Received in March 2008 was a medical statement from Kathy DeOrnellas, PH.D, dated in February 2008, indicating that she evaluated the veteran to determine whether he met the diagnostic criteria for PTSD. Dr. DeOrnellas noted that the veteran served two tours of duty during the Vietnam War. She interviewed the veteran, reviewed his records and evaluated him. Dr. DeOrnellas noted that the veteran's score on the PTSD checklist indicates that he is experiencing all of the diagnostic criteria for PTSD. The examiner concluded that the veteran met the diagnostic criteria for PTSD. III. Legal Criteria-Service Connection. Under the relevant regulations, 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). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2007). However, continuity of symptoms is required where a condition in service is noted but is not, in fact, chronic or where a diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b) (2007). Establishing service connection for PTSD requires: (1) Medical evidence diagnosing PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptoms and the claimed in-service stressor. 38 C.F.R. § 3.304(f); see Cohen v. Brown, 10 Vet. App. 128 (1997). If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d), (f). If the claimant did not engage in combat with the enemy, or the claimed stressors are not related to combat, then the claimant's testimony alone is not sufficient to establish the occurrence of the claimed stressors, and his testimony must be corroborated by credible supporting evidence. Cohen v. Brown, 10 Vet. App. 128 (1997); Moreau v. Brown, 9 Vet. App. 389 (1996); Dizoglio v. Brown, 9 Vet. App. 163 (1996); West v. Brown, 7 Vet. App. 70, 76 (1994). A stressor need not be corroborated in every detail. See Suozzi v. Brown, 10 Vet. App. 307, 311 (1997). The question of whether the veteran was exposed to a stressor in service is a factual one, and VA adjudicators are not bound to accept uncorroborated accounts of stressors or medical opinions based upon such accounts. Wood v. Derwinski, 1 Vet. App. 190 (1991), aff'd on reconsideration, 1 Vet. App. 406 (1991); Wilson v. Derwinski, 2 Vet. App. 614 (1992). Hence, whether the evidence establishes the occurrence of stressors is a question of fact for adjudicators, and whether any stressors that occurred were of sufficient gravity to cause or to support a diagnosis of PTSD is a question of fact for medical professionals. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, a longitudinal review of the evidentiary record would indicate that the veteran participated in missions and events constituting an actual encounter with a military foe or hostile unit or instrumentality or that he was exposed to other stressors consistent with the nature of his service. He engaged in combat with the enemy. Significantly, his personnel records indicate that he participated in several operations against insurgent communist forces in Vietnam. He has alleged that his stressors consisted or his participation in combat or witnessing the aftereffects of combat. Consequently, the Board finds that the veteran's statements are credible and consistent with the circumstances, conditions, and hardships of his service. 38 U.S.C.A. § 1154(a) (b). The veteran's lay statements are accepted in this case as conclusive evidence of the stressors' occurrences and no further development or corroborative evidence is required. See 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(f); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). The record establishes that the veteran served in combat or otherwise stressors producing actions. In addition, the veteran has a current, valid diagnosis of PTSD, and his PTSD has been reported to be related to his service in Vietnam. As noted above, following an interview of the veteran and a review of the record in December 2002, a VA psychiatrist concluded that the veteran suffered from chronic and severe PTSD resulting from his traumatic Vietnam experiences. It was the information contained in the veteran's statements which formed the basis of the diagnoses of PTSD on several occasions. Therefore, the medical evidence establishes that the veteran's current psychiatric disorder is related to military service. The Board specifically finds his contentions to be credible. Based on the evidence verified by the service department records, and given the current diagnosis of PTSD, which has been medically linked to military service, with stressors consistent with service, the Board finds that the evidence is sufficient to corroborate that the stressors actually occurred. In sum, the record shows a diagnosis of PTSD, medical evidence establishing a link between current symptoms and in-service stressors, and evidence consistent with combat stressors. The Board notes that the positive and negative evidence is superficial in regard to addressing the DSM criteria. Ultimately, the positive evidence is more convincing. The evidence supports the claim and service connection for PTSD is granted. ORDER Service connection for PTSD is granted. REMAND The Board regrets further delay in the veteran's case but has determined that an additional remand is necessary to properly adjudicate the veteran's claim of entitlement to a compensable evaluation for residuals of a right leg fracture. As discussed above, pursuant to the VCAA, VA first has a duty to notify the veteran and the accredited representative of any information and evidence necessary to substantiate his/her claims for VA benefits. See 38 U.S.C.A. §§ 5102, 5103; 38 C.F.R. § 3.159(b)). Furthermore, VA has a duty to assist the veteran in obtaining evidence necessary to substantiate the claim, although the ultimate responsibility for furnishing evidence rests with the veteran. See 38 U.S.C.A. § 5103A (West 2002 & Supp. 2007); 38 C.F.R. § 3.159(c) (2007). As noted above, the Board remanded the case in December 2005 for further development; the case was remanded to the RO for clarification of the March 2003 VA examination. Specifically, the RO was directed to return the claims file to the examiner who performed the March 2003 VA examination, if available; otherwise, another VA examiner. It was requested that the examiner provide an addendum to the 2003 VA examination and answer several questions pertaining to the right leg fracture. However, a review of the addendum provided by the VA examiner indicates that it is not responsive to all the question raised in the December 2005 remand. The United States Court of Appeals for Veterans Claims (Court) has held that a remand by the Board confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). While the RO complied with the December 2005 remand in that the claims file was referred to a VA examiner for an opinion regarding the March 2003 VA examination, the RO did not ensure that the examination report contained all of the information indicated in the remand. Specifically, the Board notes that the examiner did not provide an opinion as to whether there was any ankle disability associated with the ankle fracture. Rather, the examiner stated that "in so far as the ankle is concerned, in reviewing the file and the request, there was no request for an evaluation of the ankle fracture or an ankle disability (in March 2003) and this was not done." Accordingly, the RO is again requested to comply with the Board's December 2005 remand directives in that a medical opinion, as indicated below, should be obtained. To ensure that VA has met its duty to assist the appellant in developing the facts pertinent to the claim and to ensure full compliance with due process requirements, these issues are REMANDED to the AOJ for the following development: 1. The veteran should be afforded a VA orthopedic examination in order to determine the nature and extent of the right leg disorder. The claims folders and a copy of this Remand must be made available to and reviewed by the examiner in conjunction with the examination report. The examiner should provide an opinion as to whether there is any ankle disability associated with the ankle fracture. A complete rationale should accompany any opinion provided. 2. Thereafter, the RO should readjudicate the claim on appeal in light of all pertinent evidence and legal authority. The veteran and his representative must then be afforded an opportunity to respond thereto. After the above actions have been accomplished, the case should be returned to the Board for further appellate consideration, if otherwise in order. By this REMAND the Board intimates no opinion, either legal or factual, as to the ultimate determination warranted in this case. The purposes of this REMAND are to further develop the record and to accord the veteran due process of law. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs