Citation Nr: 0814537 Decision Date: 05/02/08 Archive Date: 05/12/08 DOCKET NO. 05-12 038 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD D. Bredehorst INTRODUCTION The appellant is a veteran who served on active duty from June 1978 until his early voluntary retirement in June 1995. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2004 rating decision by the Waco RO. In May 2005, the veteran requested a Travel Board hearing; he subsequently withdrew his request. FINDING OF FACT A preponderance of the evidence is against a finding that the veteran meets the criteria for a diagnosis of PTSD. CONCLUSION OF LAW Service connection for PTSD is not warranted. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies in the instant case. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her 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 VCAA notice 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 or her possession that pertains to the claim. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006). The VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). A June 2004 letter (prior to the decision on appeal) informed the veteran of the evidence and information necessary to substantiate the claim, the information required of him to enable VA to obtain evidence in support of the claim, the assistance that VA would provide to obtain evidence and information in support of the claim, and the evidence that he should submit if he did not desire VA to obtain such evidence on his behalf. October 2005, March 2006, and February 2007 letters gave him additional information regarding what was needed to support his claim and he was provided notice regarding disability ratings and effective dates of awards. Although none of the letters specifically advised him to submit relevant evidence in his possession, an April 2006 statement by the veteran reflects his understanding that he should submit such evidence, as he indicated that he had no additional evidence or information to give VA to support his claim. A March 2003 statement of the case (SOC) and SSOCs in August 2005, March 2007, and September 2007 notified the veteran of what the evidence showed, of the governing legal criteria, and of the bases for the denial of the claim. While complete notice was not provided prior to the initial adjudication of this claim, such defect does not affect the essential fairness of the adjudication process. The veteran has received all critical notice, and has had ample opportunity to participate in the adjudicatory process. The claim was readjudicated (in September 2007) after all critical notice was provided. He is not prejudiced by any technical notice timing or content defect that may have occurred earlier, nor is it otherwise alleged. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). The veteran's available service medical records (SMRs) are associated with his claims file, and VA obtained all pertinent/identified records that could be obtained. All evidence constructively of record (VA records) has been secured. The veteran was afforded a VA examination. VA's duty to assist is also met. Accordingly, the Board will address the merits of this claim. II. Factual Background At the outset, the Board notes that all the evidence in the veteran's claims files has been reviewed, with particular focus on the evidence relevant to this appeal. While the Board has an obligation to provide reasons and bases for its decision, there is no need to discuss, in detail, every piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence where appropriate, and the analysis below will focus on what the evidence shows, or fails to show as to the claim. The veteran's service personnel records show that his military occupational specialty (MOS) was motor transport operator. His assignments record shows that his only service outside of the United States was in Germany. The personnel records do not show any service in Southwest Asia or that he received any medals or decorations that denote combat. The veteran's SMRs show a normal psychiatric evaluation on enlistment (and associated history at the time of nervous trouble). Subsequent psychiatric evaluations were normal. In July 1980 he was seen for a right corneal abrasion; it was noted that there had been no injury. In July 1986 he was involved in a motor vehicle accident (he was on a motorcycle struck by an automobile), and sustained substantial injuries. On 1995 retirement examination, psychiatric evaluation was normal. The veteran endorsed depression, excessive worry, and nervous trouble. July 2003 VA treatment records note that the veteran reported that a grenade exploded and almost killed him when he was in the service. [He also reported service in the first Gulf War.] He endorsed symptoms such as nightmares, anxiety attacks, and daytime flashbacks. The assessment included PTSD. In 2004 and 2005 the veteran continued to receive psychiatric treatment, including with medication. In another account of the grenade incident the veteran reported that it exploded and hit him in the head and that metal was removed from his eye. On January 2006 VA psychiatric consultation, it was noted that the veteran endorsed two stressor events in service. He reported that during the Iran Contra situation he was in Honduras and El Salvador and was involved in training contras, was frequently shot at, and that many people were killed or injured. He alleged that a close friend was killed. He indicated that he was traumatized by such "combat" experiences. Another stressor event occurred in 1986 when he was a range instructor. He recalled that a trainee accidentally dropped a grenade during training that exploded and knocked him unconscious. He reported that he sustained shrapnel wounds to his right eye and the right side of his head. The examining psychologist noted that the PTSD criteria from B to D (re-experiencing the event, avoidance, and arousal) were met. The diagnoses included PTSD. In July 2004 and March 2007, the veteran submitted statements describing stressor events in service. He reported that in February 1980 he was stationed in El Salvador where he engaged in training exercises. While training these foreign soldiers he witnessed "many horrible situations". He also described an incident in July 1986 when he was a drill instructor at Fort McClellan in Alabama. He related that a soldier dropped a live grenade into his fox hole. He was able to get another soldier out; but as he was getting out fragments struck his head and eyes. On September 2007 VA examination, the examiner summarized the veteran's military and postservice history. It was noted that the veteran was vague regarding his experiences in Honduras and El Salvador, and that these events were not verified/corroborated. The veteran reported that he was deployed to Iraq during Operation Desert Storm. He related that in 1984 he sustained injuries to his head and eyes after a soldier accidentally dropped a live grenade in a fox hole they were in. The examiner addressed the criteria for PTSD and found that the veteran did not endorse the element that required the stressor event to cause significant distress or impairment in social, occupational, or other important areas of functioning. While he found that the veteran met the DSM- IV stressor criterion, he did not meet the overall criteria for a diagnosis of PTSD. III. Legal Criteria and Analysis Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304. To establish service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) [i.e., a diagnosis under DSM-IV]; a link, established by medical evidence, between current symptoms and a stressor event in service; and credible supporting evidence that the claimed stressor event in service occurred. 38 C.F.R. § 3.304(f). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b). The threshold question that must be addressed here (as with any claim seeking service connection) is whether the veteran actually has the disability for which service connection is sought, specifically PTSD. In the absence of proof of a present disability, there is no valid claim [of service connection]. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Significantly, while the veteran's accounts of stressors such as Persian Gulf service, combat-like "contra" training service in El Salvador and Honduras, and a live grenade training incident have been not been consistently reported, are not corroborated by and are not consistent with objective records, and are not credible, there is documentation that he was involved in a serious motor vehicle accident in service, and thus was exposed to a stressor event therein. However, the primary, and critical, question in this case is whether the veteran has the constellation of symptoms that would support a diagnosis of PTSD. That is a medical question, and medical expertise is required to address it. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The veteran's treatment records, including a report of consultation by a psychology associate show a diagnosis of PTSD. However, none of these report the full constellation of symptoms required for a diagnosis of PTSD in accordance with DSM- IV, as required under 38 C.F.R. § 4.125. While a January 2006 consultation by a psychology associate noted symptoms of re-experiencing, avoidance, and arousal, it is noteworthy that the clinical psychology associate appears to have lacked any familiarity with the veteran's claims file, as the examiner noted that the veteran had served in combat, had served in Iraq, El Salvador, and Honduras, and had lost a friend while in combat, none of which are verified or in any way corroborated by the record. Consequently, the examiner's findings that the veteran had flashbacks to/nightmares of such events have no evidentiary probative value. The Board finds more probative the opinion of the September 2007 VA examiner, who (while also finding that the veteran was exposed to a stressor event in service based on uncorroborated and inconsistent accounts) further found that the veteran did not have the constellation of symptoms necessary to support a diagnosis of PTSD, as he did exhibit any significant distress or impairment in social, occupational, or other areas of functioning. As the examiner explained what symptoms were lacking for a PTSD diagnosis, the Board finds this opinion persuasive. In summary, the preponderance of the evidence is against a finding that the veteran has the constellation of symptoms that would support a diagnosis of PTSD (related to a stressor event in service). Consequently, the preponderance of the evidence is against the veteran's claim, and it must be denied. ORDER Service connection for PTSD is denied. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs