Citation Nr: 0336535 Decision Date: 12/30/03 Archive Date: 01/07/04 DOCKET NO. 02-13 782 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for an emotionally unstable personality disorder. 3. Entitlement to service connection for upper lip scar. REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Brogdan, Counsel INTRODUCTION The veteran had active duty from November 1959 to November 1963. This matter is before the Board of Veterans' Appeals (Board) on appeal of an April 2000 rating decision from the Portland, Oregon, Department of Veterans Affairs (VA) Regional Office (RO). The veteran testified before the undersigned in June 2003, sitting at Portland, Oregon; a transcript of the hearing testimony is associated with the claims file. The issue of entitlement to service connection for PTSD is REMANDED to the RO via the Appeals Management Center, in Washington, DC. VA will notify you if further action is required on your part. FINDINGS OF FACT 1. All information and evidence necessary for an equitable disposition of the issues decided herein have been obtained. 2. A personality disorder is not considered a disability for VA compensation purposes. 3. There is no competent, objective evidence of a disabling upper lip scar residual to in-service injury. CONCLUSIONS OF LAW 1. Personality disorders are not diseases or injuries within the meaning of applicable legislation. 38 C.F.R. §§ 3.303(c), 4.9 (2003). 2. Disability manifested by an upper lip scar was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2003). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (2000), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002), and its implementing regulations, codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2003) are liberalizing and therefore applicable to the issues decided herein. See Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991). The Act and the implementing regulations essentially eliminate the requirement that a claimant submit evidence of a well-grounded claim, and provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The VCAA and the implementing regulations were in effect when the veteran's claims were most recently considered by the RO. The record reflects that in a statement of the case issued in August 2002, as well as in the rating action on appeal, the veteran was advised of the requirements for the benefits sought on appeal, the evidence considered by the RO, and the reasons for its determinations. In a letter dated in September 2001 the RO notified the veteran of the provisions of the VCAA and its potential impact on his claims, allowing him an additional period of time in which to present evidence and/or argument in support of his appeal. The veteran was further advised of the information needed from him to enable the RO to obtain evidence in support of his claim, the assistance that VA would provide in obtaining evidence on his behalf, and the evidence that he should submit if he did not desire VA's assistance in obtaining such evidence. Specific to this case, the claims file contains the veteran's service medical records as well as identified records of post-service VA treatment and evaluation. He also testified before the undersigned at a personal hearing and his hearing testimony is considered in connection with the issues decided herein. The veteran has not identified any additional evidence or argument that should be considered in the adjudication process. In fact, the record reflects that all records identified by the veteran have been obtained and considered in connection with his claim. All medical evidence obtained is negative for note of an upper lip scar or disabling residuals associated therewith. In a claim for disability compensation, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. A medical examination or medical opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability; establishes that the veteran suffered an event, injury or disease in service, or has a disease presumptive by VA regulation; and, indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service or with another service-connected disability. 66 Fed. Reg. 45,620, 45,630-32 (August 29, 2001) (to be codified at 38 C.F.R. § 3.159(c)(4)); see also 38 U.S.C.A. § 5103A(d). Thus, absent medical evidence or personal testimony as to actual disability in this case, further assistance in the form of obtaining a VA examination of the veteran's upper lip is not required. Furthermore, as discussed in the Reasons and Bases herein below, even recognizing a currently diagnosed personality disorder, such is not considered a disability for VA compensation purposes under governing law and regulations, which are dispositive in this case. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Thus, there is no reasonable possibility that further assistance would substantiate the veteran's claim and additional development is not indicated. 38 U.S.C.A. § 5103A(a)(2). Therefore, based on these particular facts, the Board is satisfied that VA has complied with the notification and assistance requirements of the VCAA and the implementing regulations, and, to the extent any deficiencies exist, the failure to correct such is nonprejudicial to the veteran. In that regard, the United States Court of Appeals for Veterans Claims (Court) has held that where the facts averred by a claimant cannot conceivably result in any disposition of the appeal other than affirmance of the Board decision, the case should not be remanded for development that could not possibly change the outcome of the decision. See Valiao v. Principi, 17 Vet. App. 229, 231-32 (2003); see also Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (stating "strict adherence [to the law] does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case. Such adherence would result in this Court's unnecessarily imposing additional burdens on the BVA and [the Secretary] with no benefit flowing to the veteran"). Accordingly, the Board will proceed to adjudicate the merits of these claims. Legal Criteria In order to establish service connection for a claimed disability the facts must demonstrate that a disease or injury resulting in current disability was incurred in the active military service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Personality disorders are not diseases or injuries for VA compensation purposes. 38 C.F.R. §§ 3.303(c), 4.9. Service connection may be granted for a disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection on the merits, "there must be medical evidence of a current disability, see Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in- service disease or injury and the present disease or injury. See Caluza [v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table)]; see also Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Grottveit [v. Brown, 5 Vet. App. 91, 93 (1993)]." Hickson v. West, 12 Vet. App. 247, 253 (1999). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis Emotionally unstable personality disorder Service medical records include the assessment that the veteran had an aggressive type emotionally unstable personality. He underwent group psychotherapy and some individual psychotherapy and his demeanor and behavior were noted to have gradually improved. His aggressive trends were adequately controlled and he was returned to duty. The post- service medical evidence of record includes note of antisocial personality traits. Nevertheless, VA laws and regulations do not provide a basis for service connection for a mere personality disorder. Rather, a diagnosed psychiatric disability is required. Notably, the veteran's claim of entitlement to service connection for PTSD is being REMANDED for further development. The instant appeal, however, is limited to the question of whether service connection is warranted for a personality disorder. In that regard, this is a case in which the law, and not the evidence, is dispositive, and the appeal must be denied. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Upper lip scar The veteran asserts that he injured his upper lip during service, was treated, and was left with a scar on the inside of his upper lip. He states that the scar is palpable when he touches it with his tongue. Service medical records are negative for documentation of an injury to the upper lip, treatment therefor, or any residuals. Available post-service VA records are similarly negative for complaints, findings or diagnoses relevant to the veteran's upper lip. Significantly, the veteran does not, in fact, report any disabling residuals such as pain or ulceration of the scar. Rather, he testified that a VA physician was unable to locate any evidence of such scar. His contentions thus seem to be limited to the fact that he can feel the scar. The intent of VA regulations relevant to service connection is clear, allowing for VA compensation where a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces. In this case, even conceding the veteran's account of an in-service injury to his lip, the evidence fails to show any resulting disability. In sum, the record shows the absence of any upper lip injury or pathology resulting in disability during or subsequent to service. As such, service connection is not warranted. The Board has considered the applicability of the benefit of the doubt doctrine; however, the preponderance of the evidence is against the veteran's claim and that doctrine is not applicable in the instant appeal. 38 U.S.C.A. § 5107; Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. ORDER Entitlement to service connection for an emotionally unstable personality disorder is denied. Entitlement to service connection for upper lip scar is denied. REMAND The veteran asserts that he now has a psychiatric illness, specifically PTSD, that had its onset during active duty, or is the result of traumatic incidents therein, to include witnessing death and injury to fellow servicemen and having been the subject of several personal assaults. In Patton v. West, 12 Vet. App. 272 (1999), the Court held that the VA must afford veterans special consideration in dealing with claims for PTSD said to be arising out of sexual assault. In particular, the Court considered the changed provisions of VA Manual M21-1, particularly Part III, paragraphs 5.14c and 7.46c (2), dealing with the special consideration that must be given to claims for PTSD based on a sexual assault. A review of the veteran's claim does not indicate that such development took place. Nor does it appear that the RO attempted to verify the veteran's other claimed stressors through official sources. He has since submitted additional evidence in support of his assertion of having witnessed death and/or injury to fellow servicemen. Attempted verification and development of the veteran's claimed personal assaults and stressors must be accomplished prior to appellate review. The Board further notes that the December 2001 VA examiner referred to having had only a "limited medical chart", and that the psychiatric diagnoses rendered at that time were thus offered without the benefit of review of the veteran's accurate and complete clinical history. Therefore, a clarifying medical opinion, based on consideration of all of the evidence of record, would be useful in ascertaining the correct diagnoses and likely etiology of current psychiatric disability. Accordingly, this claim is REMANDED to the RO for the following: 1. The RO should send the veteran a letter that complies with the notification requirements of 38 U.S.C.A. § 5103(a). In the letter, the veteran should be requested to identify the approximate dates of treatment and to furnish the addresses of any and all VA and non-VA health care providers who treated him for PTSD after service. 2. The RO should develop the veteran's contentions regarding his reported in- service personal assaults. The attention of the RO is directed to M21-1, paragraph 5.14c, Exhibits A.3 and A.4 for sample development letters. The RO should also request the veteran to provide any additional information relevant to his other claimed stressors, particularly informing him of the probative value of any detailed information regarding dates, places, detailed descriptions of events, and/or identifying information concerning any other individuals involved in the events, including their names, ranks, units of assignment and any other identifying detail. The veteran should be advised that this information is vitally necessary to obtain supportive evidence of the stressful event and that he must be as specific as possible because without such details an adequate search for supporting information cannot be conducted. 3. The RO should take appropriate action to obtain verification of the veteran's claimed stressors, to include sending a report of all statements pertaining to stressful events provided by the veteran in support of his claim, a copy of this remand and all associated documents to the U.S. Armed Services Center for Research of Unit Records (USASCRUR), located at 7798 Cissna Road, Suite 101, Springfield, Virginia 22150-3197. USASCRUR should be requested to provide any information which might corroborate each of the veteran's alleged stressors. A response, negative or positive, should be associated with the claims file. The RO should, as indicated, undertake follow-up through appropriate channels to obtain verification of the veteran's claimed stressor(s). With respect to the veteran's claimed personal assaults, a field examiner should be utilized if a personal interview is deemed necessary to obtain any supporting evidence or if specific records or statements sought cannot otherwise be provided. Also, all alternate sources set forth in M21-1, paragraph 5.14c should be utilized. 4. Following the above, the RO should review the file and prepare a summary including all associated documents and then make a specific determination, in accordance with the provisions of 38 C.F.R. § 3.304(f), with respect to whether the veteran was exposed to a stressor, or stressors, in service, and, if so, what was the nature of the specific stressor or stressors established by the record. The RO should include an assessment as to both the veteran's claimed personal assaults and other claimed stressful incidents. In reaching any determinations, the RO should address any credibility questions raised by the record. 5. After the foregoing development has been completed, the RO should arrange for the veteran to be afforded a VA psychiatric examination by a psychiatrist to determine whether the diagnostic criteria for PTSD are satisfied. With this request, the RO should provide the examiner with a list of all stressors that have been verified, as well as a complete copy of the veteran's claims file. All special studies or tests, to include psychological testing and evaluation, should be accomplished. The examiner should integrate previous psychiatric findings and diagnoses with current findings to obtain an accurate picture of the veteran's psychiatric status. The examiner should be requested to provide an opinion as to the etiology of any identified psychiatric disability. Regarding PTSD, if found, the examiner should express an opinion as to whether the veteran has PTSD related to military service and whether a diagnosis of PTSD is supportable solely by the stressor(s) that have been supported in the record. The examiner should be asked to comment on the significance, if any, in the diagnostic assessment of any evidence that is indicative of behavioral changes (see M21-1, paragraph 5.14c(8)(9)). The report of examination should include the complete rationale for all opinions expressed. 6. Following completion of all indicated development and notification, the RO should review the record and undertake any additionally indicated development and/or notification, consistent with the VCAA and other governing legal authority. After such has been satisfactorily completed the RO should readjudicate the issue of entitlement to service connection for PTSD. If action remains adverse to the veteran he and his representative should be furnished a supplemental statement of the case, and be given the opportunity to respond thereto. Thereafter, subject to current appellate procedure, the case should be returned to the Board for further consideration, if in order. No action is required on the part of the veteran or his representative until further notice is received. By this action, the Board intimates no opinion, legal or factual, as to the ultimate disposition warranted in this case. The veteran has the right to submit additional evidence and argument on the matters the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.43 and 38.02. _________________________________________________ J. M. Daley Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (BVA or Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. We will return your file to your local VA office to implement the BVA's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: ? Appeal to the United States Court of Appeals for Veterans Claims (Court) ? File with the Board a motion for reconsideration of this decision ? File with the Board a motion to vacate this decision ? File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: ? Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. None of these things is mutually exclusive - you can do all five things at the same time if you wish. However, if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your case because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the BVA, the BVA will not be able to consider your motion without the Court's permission. How long do I have to start my appeal to the Court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the United States Court of Appeals for Veterans Claims. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the Court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will then have another 120 days from the date the BVA decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to Court is filed on time. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's web site on the Internet at www.vetapp.uscourts.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the BVA to reconsider any part of this decision by writing a letter to the BVA stating why you believe that the BVA committed an obvious error of fact or law in this decision, or stating that new and material military service records have been discovered that apply to your appeal. If the BVA has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Send your letter to: Director, Management and Administration (014) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 VA FORM JUN 2003 (RS) 4597 Page 1 CONTINUED Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the BVA to vacate any part of this decision by writing a letter to the BVA stating why you believe you were denied due process of law during your appeal. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address above for the Director, Management and Administration, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address above for the Director, Management and Administration, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the BVA, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: www.va.gov/vso. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before VA, then you can get information on how to do so by writing directly to the Court. Upon request, the Court will provide you with a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to represent appellants. This information is also provided on the Court's website at www.vetapp.uscourts.gov. Do I have to pay an attorney or agent to represent me? Except for a claim involving a home or small business VA loan under Chapter 37 of title 38, United States Code, attorneys or agents cannot charge you a fee or accept payment for services they provide before the date BVA makes a final decision on your appeal. If you hire an attorney or accredited agent within 1 year of a final BVA decision, then the attorney or agent is allowed to charge you a fee for representing you before VA in most situations. An attorney can also charge you for representing you before the Court. VA cannot pay fees of attorneys or agents. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. For more information, read section 5904, title 38, United States Code. In all cases, a copy of any fee agreement between you and an attorney or accredited agent must be sent to: Office of the Senior Deputy Vice Chairman (012) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 The Board may decide, on its own, to review a fee agreement for reasonableness, or you or your attorney or agent can file a motion asking the Board to do so. Send such a motion to the address above for the Office of the Senior Deputy Vice Chairman at the Board. VA FORM JUN 2003 (RS) 4597 Page 2