Citation Nr: 0814741 Decision Date: 05/05/08 Archive Date: 05/12/08 DOCKET NO. 04-00 158 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for residuals of a head injury. 2. Entitlement to service connection for a fractured nose. 3. Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: National Veterans Organization of America, Inc. ATTORNEY FOR THE BOARD J. Meawad, Associate Counsel INTRODUCTION The veteran served on active duty from March 1967 to May 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In April 2003, the RO denied service connection for PTSD and in January 2005, the RO denied service connection for a head injury and fractured nose. The issue of service connection for PTSD 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. FINDING OF FACT There is no competent evidence of record showing that the veteran currently suffers from residuals of a head injury or a fractured nose. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for residuals of a head injury have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2007). The criteria for entitlement to service connection for residuals of a fractured nose have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2007). REASONS AND BASES FOR FINDING AND CONCLUSIONS Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of a pre-existing injury or disease in the line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304, 3.306. In order to prevail on the issue of service connection on the merits, there must be medical evidence of a (1) 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 present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. In this case, the record does not contain a current diagnosis of residuals of a head injury or a fractured nose. In fact, post-service medical evidence is entirely negative for any competent evidence of the clinical presence of these conditions. The only evidence of the existence of these disabilities is the veteran's own statements. VA treatment records from March 2005 show that x-rays of the nasal bone were negative for any fracture. In the absence of any competent evidence of residuals of a head injury or a fractured nose, the Board must conclude the veteran does not currently suffer from these disabilities. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The preponderance is against the veteran's claim, and it must be denied. Notice and Assistance Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). VA must request that the claimant provide any evidence in the claimant's possession that pertains to a claim. 38 C.F.R. § 3.159. The notice requirements apply to all five elements of a service connection claim: 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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant pre-adjudication notice by letters dated in June 2004. Additional notice was sent in March 2006. The claims were subsequently readjudicated in February 2007 and August 2007. The notification substantially complied with the specificity requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006) identifying the five elements of a service connection claim; Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence; and Pelegrini v. Principi, 18 Vet. App. 112 (2004), requesting the claimant to provide evidence in his or her possession that pertains to the claims. VA has obtained service medical records and assisted the veteran in obtaining evidence. In this case, VA need not obtain an examination as the evidentiary record does not show that the veteran currently suffers from residuals of a head injury or a fractured nose. McLendon v. Nicholson, 20 Vet. App. 79 (2006). All known and available records relevant to the issues on appeal have been obtained and associated with the veteran's claims file; and the veteran has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the veteran is not prejudiced by a decision on the claim at this time. ORDER Service connection for residuals of a head injury is denied. Service connection for a fractured nose is denied. REMAND In December 2003, the veteran provided a description of several different stressors in support of his claim for PTSD. He described a parachuting accident, in which he injured his head and face, during training at Fort Benning, Georgia in 1967 and two mortar attacks while in Ben Hoa, Vietnam in 1967 and Phu Bai, Vietnam in 1968. During a January 2004 VA examination, the examiner diagnosed the veteran as having PTSD, but stated that there was no clear evidence of a traumatic event in Vietnam and the parachuting accident could be considered traumatic. The examiner noted, incorrectly, that the veteran is service- connected for anxiety disorder. Service connection is not in effect for any psychiatric disorder. In March 2007, the veteran submitted more specific stressor descriptions. He stated that the parachuting accident occurred between September 1 and 9, 1967, at Fort Campbell. He also stated that the mortar attack in Ben Wa, Vietnam occurred in during the period of December 1967 to March 1968. There is no indication of record that the RO has attempted to verify the veteran's alleged stressors. In order to assure that the evaluation of the claim is fully informed, the RO should attempt to verify his alleged stressors. Should any of the veteran's reported stressors be verified, a VA psychiatric examination would prove helpful in this case to determine whether a diagnosis of PTSD is supported by a verified stressor. Accordingly, the case is REMANDED for the following action: 1. Request that U.S. Army and Joint Services Records Research Center (JSRRC) provide any available information which might corroborate the veteran's alleged in-service stressors. Provide JSRRC with a description of his alleged stressors as identified. The veteran stated that the parachuting accident occurred between September 1 to 9, 1967, at Fort Campbell and the mortar attack in Ben Wa, Vietnam occurred in during the period of December 1967 to March 1968. Provide JSRRC with copies of any lay and medical statements of record and personnel records obtained showing service dates, duties, and units of assignment. If unable to provide such information, they should be asked to identify the agency or department that could provide such information and the RO should conduct follow-up inquiries accordingly. 2. After completion of the foregoing, schedule the veteran for a VA psychiatric examination for the purpose of ascertaining whether PTSD found present is related to service. a. Prior to the examination, specify for the examiner the stressor or stressors that it is determined are established by the record, and the examiner must be instructed that only those events may be considered for the purpose of determining whether the veteran was exposed to one or more stressors in service. b. The examiner should conduct the examination with consideration of the current diagnostic criteria for PTSD. The examination report should include a detailed account of all pathology present. Any further indicated special studies, including psychological studies, should be accomplished. c. If a diagnosis of PTSD is appropriate, the examiner should specify (1) whether each alleged stressor found to be established by the evidence of record was sufficient to produce PTSD; (2) whether the remaining diagnostic criteria to support the diagnosis of PTSD have been satisfied; and (3) whether there is a link between the current symptomatology and one or more of the in- service stressors found to be established by the record by the RO and found to be sufficient to produce PTSD by the examiner. d. If the examination results in a psychiatric diagnosis other than PTSD, the examiner should offer an opinion as to the etiology of the non-PTSD psychiatric disorder, to include whether it is at least as likely as not that any currently demonstrated psychiatric disorder, other than PTSD, is related to the veteran's military service. A complete rationale should be given for all opinions and conclusions expressed. The claims file must be made available to the examiner for review in conjunction with the examination. 3. Finally, readjudicate the veteran's claim, with application of all appropriate laws and regulations, including consideration of any additional information obtained as a result of this remand. If the decision with respect to the claim remains adverse to the veteran, he and his representative should be furnished a supplemental statement of the case and afforded a reasonable period of time within which to respond thereto. 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). ______________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs