Citation Nr: 0812864 Decision Date: 04/18/08 Archive Date: 05/01/08 DOCKET NO. 05-33 802 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for an acquired psychiatric disorder, manifested by depression. 3. Entitlement to service connection for a left ankle disability. 4. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for Hepatitis C. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Clifford R. Olson, Counsel INTRODUCTION The veteran served on active duty from September 1979 to February 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2004 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The claim is currently under the jurisdiction of the Houston, Texas VARO. The issue of entitlement to service connection for an acquired psychiatric disorder, manifested by depression 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. FINDINGS OF FACT 1. The preponderance of medical evidence establishes that the veteran does not have post-traumatic stress disorder (PTSD). 2. The preponderance of medical evidence establishes that the veteran does not have a left ankle disability. 3. In August 2001, the RO denied service connection for hepatitis C. The veteran did not file a timely notice of disagreement. 4. The evidence received since the August 2001 RO decision is cumulative, redundant, and has been previously submitted to agency decisionmakers. VA has not received evidence that, by itself or when considered with previous evidence of record relates to an unestablished fact necessary to substantiate the claim, or which raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. PTSD was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 101(16), 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304(f) (2007). 2. A left ankle disability was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 101(16), 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2007). 3. The August 2001 RO decision denying service connection for hepatitis C is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 20.1103 (2007). 4. Evidence received since the RO's 2001 decision is not new and material and the veteran's claim of entitlement to service connection for hepatitis C is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Duty to Notify Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the duty to notify was not satisfied prior to the initial unfavorable decision on the claim by the AOJ. Under such circumstances, VA's duty to notify may not be "satisfied by various post-decisional communications from which a claimant might have been able to infer what evidence the VA found lacking in the claimant's presentation." Rather, such notice errors may instead be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the AOJ's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by readjudication of the claim by the AOJ) see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). In this case, the VCAA duty to notify was satisfied subsequent to the initial AOJ decision by way of a letter sent to the appellant in July 2006 that fully addressed all four notice elements. The letter informed the appellant of what evidence was required to substantiate the claims and of the appellant's and VA's respective duties for obtaining evidence. The appellant was also asked to submit evidence and/or information in his possession to the AOJ. Although the notice letter was not sent before the initial AOJ decision in this matter, the Board finds that this error was not prejudicial to the appellant because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice. Not only has the appellant been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond, but the AOJ also readjudicated the case by way of a supplemental statement of the case issued in October 2006, after the notice was provided. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal as the timing error did not affect the essential fairness of the adjudication. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, although the notice provided did not address either the rating criteria or effective date provisions that are pertinent to the appellant's claim, such error was harmless given that service connection is being denied, and hence no rating or effective date will be assigned for the claims decided herein. Duty to Assist VA has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. For the claims decided herein, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained service medical records and VA clinical records. The necessary examinations have been done and opinions obtained. Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of these claims that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection In order to establish service connection, three elements must be established. There must be medical evidence of a current disability; 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 current disability. See 38 U.S.C.A. §§ 101(16), 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2007); see also Hickson v. West, 12 Vet. App. 247, 253 (1999). Post-Traumatic Stress Disorder (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. 38 C.F.R. § 3.304(f) (2007). See also Pentecost v. Principi, 16 Vet. App. 124 (2002); Suozzi v. Brown, 10 Vet. App. 307 (1997). In his May 2003 claim, the veteran wrote that he was filing for service connection for PTSD because of the way that his life was affected after service. He thought about training and the things that he did in service. He often had dreams and nightmares. The RO asked the veteran to clearly state his claimed stressors. He responded, in June 2003, that it was hard for him to remember due to his short and long term memory. He also reported difficulty concentrating, nervousness, depression, panic, easy confusion, disorientation, nightmares, flashbacks, hallucinations, hearing things, seeing things, not resting or sleeping well, anxiety, isolation from people, difficulty communicating, and feeling that someone was out to hurt, mangle or kill him. As to his stressors, he reported that, in September 1980, in Germany, he was afraid for his life during service, so bad, that it affected him for the rest of his life. The June 2003 response did not identify any specific stressful event. The service personnel records show that the veteran served in the states of Georgia and Washington, not Germany. The RO again asked the veteran to report his PTSD stressors. In August 2006, he wrote that incidents occurred from September 1979 to February 1981 (his period of service) and occurred at bases in Georgia and Washington. The incidents were described as live fire exercises. In an August 2006 statement, the veteran certified that he had flashbacks to live fire exercises since basic and advanced individual training. The service medical records do not document any psychiatric disability or stressful events. The records contain VA treatment records beginning with a March 1993 hospitalization, some 12 years after service. The VA records show numerous psychiatric and psychologic evaluations, with extensive testing, resulting in psychiatric diagnoses other than PTSD. There are no competent medical diagnoses of PTSD in the record. Pursuant to VCAA, the veteran was specifically examined for PTSD in July 2005. He was currently alleging PTSD based on live fire exercises in basic training. It was noted that he had previously alleged that it was traumatic that he was not allowed to kill KGB agents and East German soldiers while stationed in Germany. His medical records and results of tests and interviews were reviewed and he was examined. The assessment was schizoaffective disorder, depressed type, by history; and malingering to gain service connection. The psychiatrist explained that the veteran may have had a traumatic event in childhood. He had previously reported that he enjoyed the "live fire" exercises in service and that they were not "live fire" but more usual field exercises involving blank rounds and pyrotechnics the simulate live ammunition. There was very little physical risk to the participants, and beyond a reasonable doubt, the veteran knew it at the time. Taken with the exaggeration of symptoms on psychologic testing and the inconsistent reporting observed in the record, the psychiatrist concluded that it was very much more likely than not that the current exaggeration was deliberate, with the apparent motive of gaining service connection for PTSD. Conclusion First, there are no verified stressors. The claimed stressors related to serving in Germany are not credible because the veteran's service personnel records show that he served exclusively in the United States, and not in Germany. Further, a competent medical professional, a psychiatrist, has determined that the claimed "live fire" stressors would not be a traumatic event that could cause PTSD. Secondly, despite repeated psychiatric and psychologic evaluations and testing there is no competent medical diagnosis of PTSD. The veteran does not have the medical training and experience to make a competent diagnosis. 38 C.F.R. § 3.159(a) (2007). His assertion that he has PTSD does not have any competent evidence to support it. The mass of medical evidence with repeated evaluations forms a preponderance of evidence that completely overwhelms the veteran's unsupported claim. As the preponderance of the evidence is against the veteran's claim, the benefit of the doubt doctrine is not applicable and the appeal must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). Left Ankle Disability When the veteran was examined for service, in September 1979, it was reported that he had strained his left ankle 6 months earlier and was currently okay. The service medical records show that the veteran was seen in late January 1980, with swelling and tenderness in the left forefoot. No marked deformity was noted and X-rays did not show a fracture. The diagnosis was a sprained left foot. Treatment was recommended. In February 1980, for his sprained left foot, he was given a temporary limitation on physical training and running for 14 days. In August 1980, he complained that he was playing softball when the second digit of the left foot was injured. Range of motion of the second toe was decreased. It was painful to the touch, with edema. Treatment was provided and the veteran was restricted from running for 5 days. The service medical records do not document any left ankle injury. Following service, the veteran was seen by VA on numerous occasions beginning in 1993. The medical records are extensive but do not reflect left ankle complaints, findings or diagnoses. In May 2006, the veteran's ankles were examined for VA. He admitted that he did not have an trouble with his left ankle at all. Service and VA medical records were reviewed. Examination of the left ankle showed no signs of edema, effusion, weakness, tenderness, redness, heat, abnormal movement, or guarding of movement. Motion went from 20 degrees dorsiflexion to 45 degrees plantar flexion. There was no additional limitation due to pain, fatigue, weakness, lack of endurance, or incoordination. X-ray studies of the left ankle were within normal limits. The doctor expressed the opinion that there was no identifiable condition of the left ankle. Conclusion Service connection can only be granted for a disability. This means that there must currently be a residual disability. The Court has held that it is not enough to show injury during service, there must be a current residual disability. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The United States Court of Appeals for the Federal Circuit has affirmed that there must be a current disability. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). As a lay witness, the veteran does not have the expertise to make a medical diagnosis. 38 C.F.R. § 3.159(a). See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). So, his assertion that he has a left ankle disability as a result of injury in service is merely his claim and is not competent evidence that the claimed disability actually exists. Competent evidence from a qualified medical professional is required to support the current existence of a left ankle disability. In this case, there is no competent medical evidence that the veteran currently has a left ankle disability. In accordance with VCAA, the veteran was accorded an examination of his ankles. This disclosed a right ankle disability but not a left ankle disorder. The extensive recent medical records without any complaints, findings or diagnoses of a left ankle disorder, capped off by a specific examination that found there was no identifiable condition of the left ankle, make a preponderance of evidence against the claim. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable and the appeal must be denied. 38 U.S.C.A. § 5107(b); Gilbert; Ortiz. Hepatitis C In August 2001, the RO considered evidence including service medical records, current clinical records and a medical opinion; and denied service connection for Hepatitis C. The decision explained that a medical opinion had been obtained and discussed that opinion. The opinion considered the veteran's claim that he had hepatitis as a result of the use of air guns for inoculations in service, but in light of multiple post service risk factors, including tattoos, concluded that it was not likely that the veteran contracted hepatitis in service. Decisions of the RO which are not appealed are final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 20.1103 (2007). However, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the claim will be reopened and the former disposition reviewed. 38 U.S.C.A. § 5108 (West 2002). Effective for claims to reopen filed after August 29, 2001, as was this claim: A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2007). In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court held that VCAA requires VA to notify a claimant who is attempting to reopen a claim of the evidence required to establish service connection and of the evidence that was found insufficient in the previous denial. In the July 2006 VCAA notice letter, the RO complied with the requirements of Kent by notifying the veteran that the evidence must show a relationship between his current hepatitis C and the infection, symptoms, or risk factor he had in service. He was told that such evidence was usually provided by medical opinions and that VA would request medical evidence if he told VA about it. He could also give VA a medical opinion regarding the relationship from his own doctor. The veteran subsequently submitted a statement on his ankle and PTSD claims, but did not respond to the request for evidence on his hepatitis claim. Conclusion The veteran previously claimed that the use of air guns for inoculations in service resulted in an infection with hepatitis C. On attempting to reopen the claim, he simply reasserted that claim. It is his claim; it is not evidence. It is neither new nor material. For its August 2001 decision, the RO had obtained a medical opinion to the effect that it was not likely that the infection was caused by anything in service, but was most likely caused by post- service risk factors, including tattoos. The RO duly notified the veteran in a VCAA compliant letter that evidence of a connection was needed. He has not submitted any such evidence or told VA of any such evidence that it could obtain for him. There is simply nothing new and material to reopen the claim. We are left without any competent medical evidence connecting his hepatitis to service, and a competent medical opinion to the effect that there is no connection. In the absence of new and material evidence, the claim cannot be reopened. 38 U.S.C.A. § 5108; see also Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). ORDER Service connection for PTSD is denied. Service connection for a left ankle disability is denied. As new and material evidence has not been received, the petition to reopen the claim for service connection for hepatitis C is denied. REMAND The veteran contends that he acquired a psychiatric disability manifested by depression during his active service. The service medical records do not reflect any psychiatric or behavioral problems in service. Notably, the records do not contain the report of a separation examination. There is a summary of the service personnel records, which shows that the veteran was discharged under honorable conditions, but does not provide information as to those conditions. Under these circumstances, the agency of original jurisdiction (AOJ) should obtain complete copies of the service personnel records pertaining to the veteran's release from service. The veteran should then be scheduled for a mental examination. The examiner should determine the veteran's current diagnosis and, after review the veteran's service medical and personnel records, express an opinion as to whether it is at least as likely as not that the current disability was incurred or aggravated in service. This remand affords an opportunity to comply with the VCAA requirements outlined by the Court in Dingess. Accordingly, the issue of entitlement to service connection for an acquired psychiatric disorder, manifested by depression, is REMANDED for the following action: 1. The AOJ should provide the veteran a VCAA compliant notice consistent with current statute and case law, including Dingess. 2. The AOJ should obtain a complete copy of: a. all service personnel records relating to the veteran's discharge from service under honorable conditions. b. any service medical records which may have been associated with the service personnel records. 3. After the above records have been associated with the claims folder, the veteran should be scheduled for a VA mental examination. The claims folder should be made available to the examiner in conjunction with the examination. Any indicated tests or studies, including psychological testing, which may be indicated to respond to the following questions should be done. a. The examiner should explain an opinion as to the veteran's current psychiatric diagnosis. b. The examiner should express an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the veteran's current psychiatric disability began or increased in severity during service. A complete rationale is desirable. 4. Thereafter, readjudicate the claim for service connection for an acquired psychiatric disorder, manifested by depression. If the determination remains unfavorable to the veteran, he and his representative should be furnished a supplemental statement of the case (SSOC) which addresses all evidence associated with the claims file since the last SSOC. The veteran and his representative should be afforded the applicable time period in which to respond. 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). ______________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs