Citation Nr: 0740556 Decision Date: 12/27/07 Archive Date: 01/02/08 DOCKET NO. 05-30 526 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for an acquired psychiatric disability, other than PTSD. 3. Entitlement to a nonservice-connected pension. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. N. Hyland, Counsel INTRODUCTION The veteran had active duty from April 1974 to March 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2004 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). FINDINGS OF FACT 1. The veteran does not have a current diagnosis of PTSD. 2. An acquired psychiatric disability, other than PTSD, was not manifested during the veteran's active duty service or for several years thereafter, nor is an acquired psychiatric disability, other than PTSD, otherwise related to the veteran's active duty service. 3. For 2002, 2003, 2004, 2005, 2006, and 2007, the veteran either did not report her annual income or her reported annual income exceeded the applicable statutory level for the annualized period in which the income was received. CONCLUSIONS OF LAW 1. PTSD was not incurred or aggravated during the veteran's active duty service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304(f), 4.125(a) (2007). 2. An acquired psychiatric disability, other than PTSD, was not incurred or aggravated during the veteran's active duty service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2007). 3. The veteran does not meet the income criteria for improved pension benefit. 38 U.S.C.A. §§ 101, 1503, 1521, 1541, 5107, 5110 (West 2002); 38 C.F.R. §§ 3.3, 3.21, 3.23, 3.271, 3.272 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist Upon receipt of a complete or substantially complete application for benefits, VA is required to advise a claimant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103 (West 2002); 38 CFR § 3.159(b)(1) (2007). As part of that notice, VA must inform the claimant of the information and evidence he is expected to provide, as well as the information and evidence VA will seek to obtain on his behalf. In addition, VA must advise a claimant to provide any additional evidence in his possession that pertains to the claim. See 38 U.S.C.A. § 5103 (West 2002); 38 CFR § 3.159(b)(1) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, VA may proceed with adjudication of a claim if errors in the timing or content of the VCAA notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dunlap v. Nicholson, No. 03-320 (U.S. Vet. App. Mar. 22, 2007); see also Pelegrini, 18 Vet. App. at 121; Sanders v. Nicholson, 487 F.3d 892 (Fed. Cir. 2007); Simmons v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). In this case, in April 2003 and April 2006 letters, the RO provided notice to the veteran regarding what information and evidence is needed to substantiate nonservice-connected pension claims, service connection claims, increased rating claims, and effective date claims, as well as specifying what information and evidence must be submitted by her, what information and evidence will be obtained by VA, and the need for her to advise VA of or submit any further evidence that pertains to her claims. The notice was not timely because it was issued after the rating decision on appeal was issued; however, the veteran was not prejudiced from this timing error because the veteran's claims were readjudicated after the veteran received proper notice. (See the June 2006 supplemental statements of the case.) See Sanders, supra.; Simmons, supra. The RO has taken appropriate action to comply with the duty to assist the veteran with the development of her claims. The record includes service records, private medical records, VA treatment records, and a VA medical examination report. As such, the Board finds that the record as it stands includes sufficient competent evidence to decide these claims. See 38 C.F.R. § 3.159(c)(4). Under these circumstances, the Board finds no further action is necessary to assist the veteran with the claims. In sum, the record reflects that the facts pertinent to the claims have been properly developed and that no further development is required to comply with the provisions of the VCAA or the implementing regulations. That is to say, "the record has been fully developed," and it is "difficult to discern what additional guidance VA could [provide] to the veteran regarding what further evidence he should submit to substantiate his claim." Conway v. Principi, 353 F. 3d. 1369 (Fed. Cir. 2004). Accordingly, the Board will adjudicate the claims. Analysis Service Connection Claims Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §1110; 38 C.F.R. § 3.303. That an injury or disease occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). PTSD Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 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. See 38 C.F.R. § 3.304(f). The provisions of 38 C.F.R. § 4.125(a) require that a diagnosis of a mental disorder conform to the Diagnostic and Statistical Manual, Fourth Edition (DSM-IV). In multiple statements, the veteran has claimed that she was sexually assaulted during service and that this assault was her in-service PTSD stressor. In claims for service connection for PTSD based on personal assault, VA has established special procedures for evidentiary development. Patton v. West, 12 Vet. App. 272, 277 (1999). These procedures take into account the fact that since personal assault is an extremely sensitive issue, many incidents of personal assault are not officially reported, and victims of this type of in-service trauma may find it difficult to produce evidence to support the occurrence of the stressor. These procedures thus acknowledge the difficulty claimants face in establishing the occurrence of the stressor through standard evidence, and the need for development of alternate sources of evidence. See VA Adjudication Procedure Manual M21-1 (hereinafter M21-1), Part III, paragraph 5.14c (Feb. 20, 1996) (substantially enlarging on the former Manual M21- 1, Part III, paragraph 7.47c(2) (Oct. 11, 1995)). Alternate sources that may provide credible evidence of an in-service personal assault include medical or counseling treatment records following the incident, military or civilian police reports, reports from crisis intervention or other emergency centers, statements from confidants or family, copies of diaries or journals, or behavior changes documented or observed at the time of the incident, such as obsessive behavior at the time of the incident, pregnancy tests, increased interest in test for sexually transmitted diseases, termination of primary relationships, or alcohol and drug abuse. Evidence that documents any such behavioral changes may require interpretation by a VA neuropsychiatric physician to determine whether such evidence bears a relationship to the medical diagnoses. See M21-1, Part III, para. 5.14(c)(9). Furthermore, these provisions state that if the claimed stressful incident is a personal assault, a stressor development letter specifically tailored for personal assault cases should be sent to the veteran. See M21-1, Part III, para. 5.14(c)(6). Finally, 38 C.F.R. § 3.304(f)(3) requires that VA not deny such claims without: (1) first advising claimants that evidence from sources other than a claimant's service medical records, including evidence of behavior changes, may constitute supporting evidence of the stressor; and (2) allowing him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. The record shows that the veteran was advised of these provisions by way of an April 2003 letter. As an initial matter, it must be shown that the veteran has a current diagnosis of PTSD made in accordance with DSM-IV because service connection cannot be established without a current disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In this regard, the competent medical evidence of record includes, inter alia, psychiatric diagnoses of a mood disorder, depression, bipolar disorder, dysthymia and depressive neurosis, but there is no documentation of a diagnosis of PTSD. In fact, the February 2007 VA fee-basis examination report shows that after reviewing the veteran's c-file, obtaining the veteran's history, and performing a mental status examination, the physician concluded that the veteran did not meet the criteria for PTSD as per the DSM-IV. There are no contrary medical opinions of record. As such, the Board finds that the preponderance of the evidence demonstrates that the veteran does not have a current diagnosis of PTSD. As noted above, service connection cannot be established without a current disability. Brammer, supra. Therefore, service connection for PTSD is not warranted. Acquired Psychiatric Disability As noted above, the competent medical evidence of record shows psychiatric diagnoses of, inter alia, a mood disorder, depression, bipolar disorder, dysthymia and depressive neurosis. The Board finds, however, that the preponderance of the evidence is against a finding that any of these diagnosed acquired psychiatric disabilities are etiologically related to the veteran's period of active duty service. There is no evidence of psychiatric complaints or diagnoses during the veteran's period of active duty service. The veteran's February 1976 discharge examination report shows that she denied nervous trouble of any sort and claimed that she did not know if she experienced any depression or excessive worry. The examination report reflects that on clinical evaluation, the veteran was found to be within normal psychiatric limits. The February 2004 VA fee-basis examination report shows that the veteran herself claimed that her psychiatric symptoms did not commence until 1981. Indeed the earliest record of treatment for psychiatric complaints is from September 1981 VA treatment records, which diagnosed dysthymia and depressive neurosis and attributed both to a recent "breakup with her lover." The February 2004 VA fee-basis examination report shows that the examiner found that the veteran had symptoms that were consistent with depression, but the examination report does not demonstrate that the examiner found that the current diagnosis of depression was etiologically related to the veteran's active duty service. In short, there is no competent medical evidence of an acquired psychiatric disability during service, and the first manifestations of the veteran's psychiatric complaints did not occur until 1981, approximately 5 years after her discharge from active duty service, and there is no competent medical evidence of record which etiologically relates the veteran's currently diagnosed acquired psychiatric disabilities to her period of active duty service. Therefore, the Board finds that entitlement to service connection for an acquired psychiatric disability, other than PTSD, is not warranted. Pension Claim Pension is a benefit payable by VA to veterans of a period of war because of disability. Basic entitlement to such pension exists if, among other things, the veteran's income is not in excess of the maximum annual pension rate (MAPR) specified in 38 C.F.R. § 3.23. 38 U.S.C.A. § 1521(a), (b); 38 C.F.R. § 3.3(a)(3), 3.23(a), (b), (d)(4). The MAPR is published in Appendix B of VA Manual M21-1 and is to be given the same force and effect as if published in VA regulations. 38 C.F.R. §§ 3.21, 3.23. In determining annual income, all payments of any kind or from any source shall be counted as income during the 12- month annualization period in which received unless specifically excluded under 38 C.F.R. § 3.272. Recurring income, received or anticipated in equal amounts and at regular intervals such as weekly, monthly, quarterly and which will continue throughout an entire 12-month annualization period, will be counted as income during the 12-month annualization period in which it is received or anticipated. 38 C.F.R. § 3.271(a)(1). Nonrecurring income, received or anticipated on a one-time basis during a 12-month annualization period, will be counted as income for a full 12-month annualization period following receipt of the income. 38 C.F.R. § 3.271(a)(1),(3). The amount of any nonrecurring countable income received by a beneficiary shall be added to the beneficiary's annual rate of income for a 12- month annualization period commencing on the effective date on which the nonrecurring income is countable. 38 C.F.R. § 3.273(c). Under 38 C.F.R. § 3.272, the following shall be excluded from countable income for the purpose of determining entitlement to improved pension: welfare; maintenance; VA pension benefits, payments under Chapter 15, including accrued pension benefits; reimbursement for casualty loss; profit from sale of property; joint accounts (accounts in joint accounts in banks and similar institutions acquired by reason of death of the other joint owner); and medical expenses in excess of five percent of the MAPR, which have been paid. The veteran's application for improved pension was received in April 2003 and the veteran reported annual income of $931.00 per month in Social Security Administration benefits and $341.00 per month in state pension benefits for an annual income of $11,664. The veteran reported no spouse or dependent children in the April 2003 application for improved pension. The veteran also reported no medical expenses, in spite of being requested to do so in the April 2003 RO letter to the veteran. Effective December 1, 2002, the MAPR for an otherwise eligible claimant, without a dependent child, was $6,497. See 38 C.F.R. § 3.23(a)(5); M21-1, Part I, Appendix B. Effective December 1, 2003, the MAPR for an otherwise eligible claimant, without a dependent child, was $6,634. Id. Effective December 1, 2004, the MAPR for an otherwise eligible claimant, without a dependent child, was $6,814. Id. Effective December 1, 2005, the MAPR for an otherwise eligible claimant, without a dependent child, was $7,094. Id. Effective December 1, 2006, the MAPR for an otherwise eligible claimant, without a dependent child, was $7,329. Id. The only year for which the veteran supplied income information was 2003 and her reported annual income of $11,664 greatly exceeded the MAPR of $6,497 effective December 1, 2002 and the MAPR of $6,634 effective December 1, 2003. Without sufficient verification of the veteran's income for the years 2002 and 2004 through 2007, the Board cannot determine if the veteran's income exceeded the MAPR for these same years. In making these determinations, the Board has considered the provisions of 38 U.S.C.A. § 5107(b), but there is not such a state of approximate balance of the positive evidence with the negative evidence to otherwise warrant a favorable decision. ORDER Entitlement to service connection for PTSD is denied. Entitlement to service connection for an acquired psychiatric disability, other than PTSD, is denied. Entitlement to nonservice-connected pension is denied. ____________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs