Citation Nr: 0813881 Decision Date: 04/25/08 Archive Date: 05/01/08 DOCKET NO. 04-23 005 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for an acquired psychiatric disability, claimed as depression. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A.G. Alderman, Associate Counsel INTRODUCTION The veteran served on active duty from March to August 1943. This case is before the Board of Veterans' Appeals (Board) on appeal from an August 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the benefits sought on appeal. This matter was previously before the Board in September 2007 at which time all claims were remanded for further development. All development having been completed, the matter is now before the Board for adjudication. FINDINGS OF FACT 1. There is no competent evidence of a current diagnosis of PTSD. 2. The appellant's depression is not related to service. CONCLUSION OF LAW 1. Service connection for PTSD is not established. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2007). 2. The appellant's depression was not incurred in or aggravated by service. 38 U.S.C.A. § 1110, 1131 (West Supp. 2005); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In addition, certain chronic diseases, such as arthritis and hypertension, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West Supp. 2005); 38 C.F.R. §§ 3.307, 3.309 (2007). In general, service connection requires: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with VA regulations; 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. The Board has reviewed the appellant's service medical records, post service medical records, and other evidence of record, and finds that the appellant has not been diagnosed with PTSD. Therefore, his claim must be denied. Even if the veteran had been diagnosed with PTST or PTSD symptoms at some time, the Board must find that the post- service medical record, as a whole, clearly indicates that the veteran does not have PTSD at this time. With regard to the claim for service connection for a psychological disorder, specifically major depression, the Board has reviewed the service medical records, post-service medical records, and other evidence of record and finds that the appellant has been diagnosed with depression, however, the evidence fails to provide a nexus between service and the diagnosed disorder. The service medical records show that the appellant's nervous system was normal upon entry to service in December 1942. The examination conducted prior to flight training, dated December 1942, also indicates that the appellant had no disturbances in conscience, anxiety trends, elation and depression, irritability and apathy, phobias, or sensory disturbances. A subsequent flight examination, dated August 1943, indicates that the veteran had marked anxiety that his failure to swim well would disqualify him from flying and he had a fear of water and swimming. He was found unfit for aviation flight training or any other branch of the Naval Service. The medical examination conducted at separation in August 1943 indicates that the appellant was physically qualified for discharge; however, it was noted that the appellant suffered anxiety neurosis at that time. The appellant sought treatment from a private physician, Dr. M, for his annual physical exams, which included notations about his mental health. In a record dated March 1971, Dr. M. notes the appellant's history of emotional problems and hospitalization at Hallbrooke in 1967 and at Fairfield Hill in 1969. He had no emotional problems at the time of the exam. The hospitalization at Fairfield Hill was noted in a December 1972 medical record, which indicated that he spent 5 days at the facility. The impression of Dr. M at that time was that the appellant had anxiety, per the history of the appellant. In the March 1974 and April 1977 records, Dr. M. noted the appellant had been emotional upset. The Board notes that Dr. M. failed to diagnose appellant with depression or PTSD, and further failed to indicate whether the emotional episodes and anxiety were related to his service over 30 years prior. VA outpatient records, dated December 2002 through March 2005 indicate treatment for mental health disorders. In December 2002, the VA medical provider indicated that the appellant had severe depression caused by his bipolar disorder. In January 2003, August 2003, February 2004, August 2004, and March 2005, the appellant was diagnosed with bipolar disorder and depression. No opinion regarding the etiology of the appellant's bipolar disorder or depression, with the exception of the bipolar disorder causing depression, was provided. Also submitted was a letter from a Dr. E.K. dated March 2003, who had been treating the appellant's depression and indicated that the appellant had been hospitalized for approximately two months in the preceding year. No opinion regarding the etiology of the veteran's depression was discussed and other than this letter, no treatment records were provided. The Board notes that the RO attempted to schedule a VA exam; however, the appellant moved from his residence and failed to update his contact information with the RO or with his service representative. According to the statement from the appellant's representative, dated March 12, 2008, the appellant had moved and could not be contacted and that all attempts to contact the appellant have provided no response. Therefore, a VA examination could not be scheduled. Based upon the foregoing, without a nexus opinion linking the appellant's depression to his active service, the Board cannot grant service connection. The Board also considered possible service connection for anxiety and notes that the appellant suffered anxiety in service and post-service; however, there is no current diagnosis for anxiety. Further, based on the service and post-service medical records, the Board must find that the records provide, overall, evidence against this claim, indicating a disorder that began many years after service with no connection with service. Therefore, service connection cannot be granted for anxiety. In summary, for the reasons and bases set forth above, the Board concludes that the preponderance of the evidence is against finding that the appellant's depression had its onset in service, manifested to a compensable degree within one year of separation, or is otherwise related to his military service. The Board finds that the service medical record and available post-service medical records provide evidence against this claim. Thus, the benefit sought on appeal is denied. The Duty to Notify and Assist 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). 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, or regional office (RO). 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 RO. 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 RO'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 RO) 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 RO decision by way of a letter sent to the appellant on September 28, 2007 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 RO. Although the notice letter was not sent before the initial RO 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 RO also readjudicated the case by way of a supplemental statement of the case issued in December 2007 after the notice was provided. It is not clear if the veteran received these communications, but if he did not, it is his failure to provide the VA with his most current address that has created the major problem in the adjudication of this case, and the Board may not delay the adjudication of this claim indefinitely. 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. VA has a duty to assist the appellant in the development of the claim. This duty includes assisting the appellant 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. Under 38 C.F.R. § 3.655, when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record, as it was in this case. 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 VA outpatient treatment records and private treatment records. The veteran submitted private treatment records. VA attempted to schedule a VA medical examination for the appellant; however, the appellant no longer resides at the address VA has on file and he failed to provide updated contact information to the VA and/or to his service representative. Therefore, a VA examination was not able to be completed. 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 the claim that has not been obtained. In fact, in a statement dated August 2004, the appellant indicated that he had no further medical evidence and that his claim was complete. 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 claim. 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). ORDER Service connection for PTSD is denied. Service connection for depression is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs