Citation Nr: 0814186	
Decision Date: 04/30/08    Archive Date: 05/08/08

DOCKET NO.  05-27 758	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, 
Tennessee


THE ISSUES

1.  Entitlement to service connection for post-traumatic 
stress disorder (PTSD).

2.  Whether new and material evidence has been received to 
reopen a claim of service connection for a skin disease of 
the hands and feet.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

K. Ahlstrom, Associate Counsel




INTRODUCTION

The veteran served on active duty from February 1954 to 
October 1957 and from December 1957 to February 1961.  

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a November 2004 rating decision of the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Nashville, Tennessee.  

As a procedural matter, the veteran's service medical records 
were apparently damaged in the fire at the National Personnel 
Records Center (NPRC) in 1973.  However, the Board has 
carefully reviewed the service and personnel records 
associated with the claims file and finds that, while 
reflecting obvious damaged along the edges, copies of a full 
compliment of records are present and, for the most part, 
fully readable.  


FINDINGS OF FACT

1.  A diagnosis of PTSD is currently shown.

2.  The veteran did not participate in combat with the enemy; 
there is insufficient information to allow for verification 
of the alleged in-service stressors.

3.  An August 1993 rating decision denied service connection 
for a skin disease of the hands and feet; he did not appeal 
and that decision became final.

4.  The evidence associated with the claims file since to the 
August 1993 rating decision, when considered with previous 
evidence of record, does not relate to a necessary 
unestablished fact or raise a reasonable possibility of 
substantiating the claim of service connection for a skin 
disease of the hands and feet.  




CONCLUSIONS OF LAW

1.  PTSD was not incurred in or aggravated by active duty.  
38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 
C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 4.125(a) (2007).    

2.  The August 1993 rating decision denying service 
connection for a skin disease of the hands and feet is final.  
38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 
(2007).

3.  Evidence received since the RO's August 1993 rating 
decision is not new and material and the claim is not 
reopened.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. 
§ 3.156(a) (2007). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board is mindful that in a case, such as this one where 
service medical records have been lost or destroyed, there is 
a heightened duty to assist the veteran in developing the 
evidence that might support his claim.  See Cuevas v. 
Principi, 3 Vet. App. 542 (1992).  This heightened duty 
includes the obligation to search for alternate medical 
records.  See Moore v. Derwinski, 1 Vet. App. 401 (1991).  In 
addition, the Board is directed to explain its findings and 
conclusions and consider carefully the benefit-of-the-doubt 
rule.  See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991).  

As noted above, while the veteran's service medical records 
were damaged in the 1973 fire, the claims file includes two 
envelopes of copies of the documents and they are of 
sufficient quality to make a decision in this case without 
further need to search for alternate records.



Service Connection for PTSD

Under the relevant laws and regulations, service connection 
may be granted for a 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).

Further, service connection may also be granted for any 
disease diagnosed after discharge, when all the evidence, 
including that pertinent to service, establishes that the 
disease was incurred in service.  38 U.S.C.A. § 1113(b) (West 
2002); 38 C.F.R. § 3.303(d) (2007).  The Board must determine 
whether the evidence supports the claim or is in relative 
equipoise, with the appellant prevailing in either case, or 
whether the preponderance of the evidence is against the 
claim, in which case, service connection must be denied.  
Gilbert v. Derwinski, 1 Vet. App. 49.

Service connection for PTSD requires: medical evidence 
diagnosing the condition in accordance with 38 C.F.R. 
§ 4.125(a) (conforming to the Diagnostic and Statistical 
Manual of Mental Disorders, Fourth Edition (DSM-IV)); 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.  38 C.F.R. 
§ 3.304(f).  

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 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); West v. Brown, 7 Vet. App. 70 (1994).  

If the veteran did not engage in combat with the enemy, or if 
the claimed stressors are not related to combat, the 
veteran's testimony alone is not sufficient to establish the 
occurrence of the claimed stressors, and those stressors must 
be corroborated by credible supporting evidence.  Cohen v. 
Brown, 10 Vet. App. 128 (1997).  

The Board has first considered the question of whether the 
veteran has a medical diagnosis of PTSD.  A January 2005 
private psychiatric treatment record reflects that he has 
been diagnosed with PTSD.  This record reflects a diagnosis 
of PTSD due to various traumatic incidents and missions in 
which he participated during his active service.  

With regard to the question of whether the veteran 
participated in combat with the enemy during service, he does 
not contend, and the evidence does not demonstrate, that he 
engaged in combat or that his claimed stressors are related 
to combat.  As such, the Board has considered whether his 
PTSD is based upon a verified in-service stressor or 
stressors.  

To that end, the veteran contends that he has PTSD as a 
result of several separate in-service stressors that occurred 
while he was on active duty.  Specifically, he has asserted 
the following:

*	he was onboard an airplane headed to 
Greenland that experienced engine 
failure, and he feared that they 
would not land safely;
*	an airplane he was in had blown an 
engine at take-off, struck some 
houses, and he was terrified that 52 
tons of fuel would catch fire;
*	he was threatened with court-martial 
when he was apparently a member of a 
crew that had drifted off course;
*	he witnessed an accident when a 
plane and a crew of six took off and 
crashed into a nearby mountain;
*	he was a member of a crew that had 
difficulty landing in fog;
*	he was a member of a crew when a 
fuel line above him broke and 
covered him with jet fuel;
*	he had high anxiety having a top 
security clearance;
*	he once lost his identification card 
and was afraid that he would be send 
to Leavenworth prison;
*	he was held at gunpoint in Arabia, 
forced to strip, and was searched 
for weapons;
*	his base in Morocco was often fired 
upon;
*	he witnessed a French soldier kill 
an "Arab;"  
*	he witnessed an airplane, on which 
he was supposed to be a passenger, 
crash into a mountain;  
*	he witnessed a friend and fellow 
airman, A.R., killed as a result of 
walking too close to an airplane 
propeller; and 
*	in an August 2007 letter from a 
United States Congressman, the 
veteran apparently reported to 
Congressman that he had been 
involved with the retrieval and 
disposal of bodies in Louisiana 
following Hurricane Audrey.  Of 
note, he had never previously 
mentioned such activities in either 
his personal correspondence or in 
private psychiatric records.  

Of note, several of the veteran's stressors are incapable of 
being verified.  Specifically, the reports of experiencing 
engine failure, potential of fuel catching fire, threatened 
court-martial, difficulty landing in fog, having jet fuel 
spilled on him, losing his identification card, and the death 
of an Arab civilian by a French soldier are simply not the 
type of situations that would be reported.  

With respect to the other stressors which may be verified, 
his base being fired on and the death of a fellow airman, 
when asked to provide dates, places, and times, no additional 
information was forthcoming.  In the August 2005 substantive 
appeal, he acknowledged that he could not remember dates, 
places, or names.  Unfortunately, in the absence of specific 
information that could be searched by the United States Joint 
Services Records Research Center (JSRRC), the Board has no 
basis for corroborating his stressors.

With respect to the information provided to the Congressman 
regarding his involvement in Hurricane Audrey, the service 
personnel records reflect that he was assigned to North 
Africa from June 1957 to September 25, 1957.  Although the 
exact date of the transfer to North Africa is not legible, as 
a matter of historical record Hurricane Audrey hit land on 
June 27, 1957.  The article submitted to the Congressman 
reflects mass burials on July 1, 1957.  This timeline weighs 
against the veteran's assertions that he participated in the 
retrieval and disposal of bodies after the hurricane.

As the veteran did not participate in combat with the enemy, 
and the stressors cannot be verified based upon the evidence 
of record, the claim of service connection for PTSD must be 
denied.  Because the preponderance of the evidence is against 
the claim, the benefit of the doubt doctrine is not for 
application.  See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; 
Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

New and Material Evidence to Reopen Claim of 
Service Connection for a Skin Disease of the Hands and Feet

Generally, a final rating decision or Board decision may not 
be reopened and allowed, and a claim based on the same 
factual basis may not be considered.  
38 U.S.C.A. § 7105.  Under 38 U.S.C.A. § 5108, however, "[i]f 
new and material evidence is presented or secured with 
respect to a claim which has been disallowed, the Secretary 
shall reopen the claim and review the former disposition of 
the claim."

"New and material evidence" means evidence not previously 
submitted to agency decision makers which, by itself or in 
connection with evidence previously included in the record, 
"relates to an unestablished fact necessary to substantiate 
the claim."  Such evidence must also "raise a reasonable 
possibility of substantiating the claim."  See 38 C.F.R. § 
3.156(a).  

In this case, in an August 1993 rating decision, the RO 
denied the veteran's claim of service connection for a skin 
disease of the hands and feet on the basis that the evidence 
did not demonstrate a current skin disease.  Notice of this 
decision was issued on September 20, 1993.  Because he did 
not appeal, the August 1993 decision denying service 
connection for a skin disease of the hands and feet became 
"final" under 38 U.S.C.A. § 7105(c).  See also 38 C.F.R. 
§ 20.1103. 

The question for the Board now is whether new and material 
evidence has been received by VA in support of the veteran's 
claim since the issuance of the August 1993 rating decision.  
Because the Board has the jurisdictional responsibility to 
consider whether it was proper to reopen the claim, 
regardless of the RO's determination on the question of 
reopening, the Board will determine whether new and material 
evidence has been received and, if so, consider entitlement 
to service connection on the merits.  Jackson v. Principi, 
265 F.3d 1366, 1369 (Fed Cir. 2001); Barnett v. Brown, 83 
F.3d 1380 (Fed. Cir. 1996). 

At the time of the August 1993 rating decision, the records 
for review in connection with the veteran's claim of service 
connection for a skin disease of the hands and feet included 
the service medical records, which demonstrated that he was 
diagnosed with dyshidrosis, chronic eczema, athlete's foot, 
and dermatophytosis on numerous occasions.  The evidence also 
included an August 1993 VA examination, at which the examiner 
noted that the veteran did not have a rash on his feet and 
hands, but did have hyperhidrotic (excessively sweaty) palms 
and soles. 

Since the August 1993 rating decision, additional evidence of 
record includes VA treatment records, private treatment 
records, as well as five VA examinations of his feet.  None 
of the treatment records associated with the claims file 
since the August 1993 rating decision contain a diagnosis of 
any sort of skin condition.  

At an October 1994 VA examination, the examiner noted that 
there was no dermatitis of any significance present.  An 
April 2004 VA examination noted that the veteran had been 
seeing a dermatologist; however, he has not supplied VA with 
an authorization and consent form to obtain these records.  
The examiner did not note any skin abnormalities of the 
veteran's hands and feet.  

The evidence associated with the record since the August 1993 
rating decision does not relate to a current diagnosis of a 
skin disease.  Therefore, the evidence does not raise a 
reasonable possibility of substantiating the claim, and is 
not considered to be new and material. In conclusion, the 
Board finds that the evidence received since the August 1993 
rating decision is not new and material, and the claim of 
service connection for a skin disease of the hands and feet 
is not reopened.

Finally, as provided for by the Veterans Claims Assistance 
Act of 2000 (VCAA), 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).  

Proper notice from VA must inform the claimant of any 
information and medical or lay 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 her or his possession that pertains to the claim 
in accordance with 38 C.F.R. § 3.159(b)(1).  Quartuccio v. 
Principi, 16 Vet. App. 183 (2002).  This notice must be 
provided prior to an initial unfavorable decision on a claim 
by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 
2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

In addition, the notice requirements of the VCAA apply to all 
five elements of a service-connection claim, including: (1) 
veteran status; (2) existence of a disability; (3) a 
connection between the veteran's service and the disability; 
(4) degree of disability; and (5) effective date of the 
disability.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 
473 (2006).  Further, this notice must include information 
that a disability rating and an effective date for the award 
of benefits will be assigned if service connection is 
awarded.  Id. at 486.  

VCAA notice errors are presumed prejudicial unless VA shows 
that the error did not affect the essential fairness of the 
adjudication.  To overcome the burden of prejudicial error, 
VA must show (1) that any defect was cured by actual 
knowledge on the part of the claimant; (2) that a reasonable 
person could be expected to understand from the notice what 
was needed; or, (3) that a benefit could not have been 
awarded as a matter of law.  See Sanders v. Nicholson, 487 
F.3d 881 (Fed. Cir. 2007).  

With respect to the claim for PTSD, the VCAA duty to notify 
was satisfied by way of a letter sent to the veteran in 
August 2004 that fully addressed all four notice elements and 
was sent prior to the initial RO decision in this matter.  
The letter informed him of what evidence was required to 
substantiate the claim and of his and VA's respective duties 
for obtaining evidence.  He was also asked to submit evidence 
and/or information in his possession to the RO.  

There is no allegation from the veteran that he has any 
evidence in his possession that is needed for full and fair 
adjudication of this claim.  Under these circumstances, the 
Board finds that the notification requirements of the VCAA 
have been satisfied as to both timing and content.

With respect to the Dingess requirements, the veteran was not 
provided with notice of the type of evidence necessary to 
establish a disability rating or effective date for the 
disability on appeal.  However, there is no prejudice in 
issuing a final decision because the preponderance of the 
evidence is against the claim for service connection.  Any 
questions as to the appropriate disability rating or 
effective date to be assigned are moot.  

With respect to the claim to reopen, VA must both notify a 
claimant of the evidence and information that is necessary to 
reopen the claim and notify the claimant of the evidence and 
information that is necessary to establish entitlement to the 
underlying claim for the benefit that is being sought.  Kent 
v. Nicholson, 20 Vet. App. 1 (2006).

To satisfy this requirement, the Secretary is required to 
look at the bases for the denial in the prior decision and to 
provide the claimant with a notice letter that describes what 
evidence would be necessary to substantiate those elements 
required to establish service connection that were found 
insufficient in the previous denial.  

In this case, the notice letter provided to the veteran in 
May 2004 included the criteria for reopening a previously 
denied claim, the criteria for establishing service 
connection, and information concerning why the claim was 
previously denied.  Consequently, the Board finds that 
adequate notice has been provided, as he was informed about 
what evidence was necessary to substantiate the elements 
required to establish service connection that were found 
insufficient in the previous denial.  

Therefore, adequate notice was provided to the veteran prior 
to the transfer and certification of his case to the Board 
and complied with the requirements of 38 U.S.C. § 5103(a) and 
38 C.F.R. § 3.159(b).  

Next, VA has a duty to assist the veteran in the development 
of the claim.  This duty includes assisting him 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.  

With respect to the claim for PTSD, the Board notes that in 
determining whether the duty to assist requires that a VA 
medical examination be provided or medical opinion obtained 
with respect to a veteran's claim for benefits, there are 
four factors for consideration.  

These four factors are:  (1) whether there is competent 
evidence of a current disability or persistent or recurrent 
symptoms of a disability; (2) whether there is evidence 
establishing that an event, injury, or disease occurred in 
service, or evidence establishing certain diseases 
manifesting during an applicable presumption period; (3) 
whether there is an indication that the disability or 
symptoms may be associated with the veteran's service or with 
another service-connected disability; and (4) whether there 
otherwise is sufficient competent medical evidence of record 
to make a decision on the claim.  38 U.S.C. § 5103A(d); 
38 C.F.R. § 3.159(c)(4).  

With respect to the third factor above, the Court of Appeals 
for Veterans Claims has stated that this element establishes 
a low threshold and requires only that the evidence 
"indicates" that there "may" be a nexus between the 
current disability or symptoms and the veteran's service.  

The types of evidence that "indicate" that a current 
disability "may be associated" with military service 
include, but are not limited to, medical evidence that 
suggests a nexus but is too equivocal or lacking in 
specificity to support a decision on the merits, or credible 
evidence of continuity of symptomatology such as pain or 
other symptoms capable of lay observation.  McLendon v. 
Nicholson, 20 Vet. App. 79 (2006).  

In this case, the Board finds that all necessary development 
has been accomplished, and therefore appellate review may 
proceed without prejudice to the veteran.  See Bernard v. 
Brown, 4 Vet. App. 384 (1993).  The RO obtained VA treatment 
records.  Further, he submitted a private psychiatric record 
reflecting a diagnosis of PTSD.  Therefore, the available 
records and medical evidence have been obtained in order to 
make an adequate determination as to this claim.  Moreover, 
the Board has acknowledged a diagnosis of PTSD.  Given the 
absence of confirmed in-service stressors, a remand for a VA 
examination would unduly delay resolution.

With respect to the claim based on new and material evidence, 
the RO obtained VA treatment records and the veteran 
submitted private treatment records.  In addition, he was 
afforded a VA medical examination in April 2004.  A specific 
VA medical opinion is not needed to consider whether the 
veteran has submitted new and material evidence but, rather, 
the Board has reviewed all the evidence submitted to the 
claims file since the last final denial.  Therefore, a remand 
for another VA examination or an opinion is not warranted.  
See also 38 C.F.R. § 3.159(c)(4)(iii) (2007).

The Board finds that all necessary development has been 
accomplished, and therefore appellate review may proceed 
without prejudice to the veteran.  See Bernard v. Brown, 4 
Vet. App. 384 (1993).  Significantly, neither he 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 claims that has not 
been obtained.  

Hence, no further notice or assistance to the veteran is 
required to fulfill VA's duty to assist 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).


ORDER

Service connection for PTSD is denied.  

New and material evidence not having been submitted, the 
application to reopen a claim of entitlement to service 
connection for a skin disease of the hands and feet is 
denied.



____________________________________________
L. HOWELL
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs