Citation Nr: 1007604 Decision Date: 03/01/10 Archive Date: 03/11/10 DOCKET NO. 06-03 617 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for a psychiatric disorder, claimed as posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The Veteran served on active duty from January to August 1976. This case was previously before the Board of Veterans' Appeals (Board) in February and September 2008. Each time, it was remanded for further development. Following the requested development, the VA Appeals Management Center in Washington, D.C. confirmed and continued the denial of entitlement to service connection for a psychiatric disorder, claimed as PTSD. Thereafter, the case was returned to the Board for further appellate action. FINDING OF FACT The preponderance of the competent evidence of record shows that a psychiatric disorder, claimed as PTSD, was first manifested many years after the Veteran's separation from service and that it is unrelated to any stressor incident in service. CONCLUSION OF LAW A psychiatric disorder, claimed as PTSD, was not incurred in or aggravated by active military service and PTSD is not the result of an inservice stressor. 38 U.S.C.A. §§ 1131, 5103, 5103A (West 2002 and Supp. 2009); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duty to Notify and Assist Prior to consideration of the merits of the Veteran's appeal, the Board must determine whether VA has met its statutory duty to assist him in the development of the issue of entitlement to service connection for a psychiatric disorder, claimed as PTSD. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. After reviewing the record, the Board finds that VA has met that duty. In December 2004, VA received the Veteran's claim, and there is no issue as to providing an appropriate application form or completeness of the application for service connection for a psychiatric disorder, claimed as PTSD. Following the receipt of that application, VA notified the Veteran of the information and evidence necessary to substantiate and complete his claim, including the evidence to be provided by the Veteran, and notice of the evidence VA would attempt to obtain. VA informed him of the criteria for service connection and set forth the criteria, generally, for rating service-connected disabilities and for assigning effective dates, should service connection be granted. Following the notice to the Veteran, VA fulfilled its duty to assist him in obtaining identified and available evidence necessary to substantiate his claim. VA obtained or ensured the presence of the Veteran's service treatment and personnel records; records reflecting his treatment by VA from May 2003 through August 2007; and statements from his uncle and sister. In October 2007, VA scheduled the Veteran for a hearing at the RO before a member of the Board, so that he could present testimony and additional evidence in support of his claim. However, the Veteran failed to report for that hearing and has not requested that it be rescheduled. Therefore, the Board concludes that the Veteran no longer wishes to have a hearing and will proceed to decide the case without the benefit of his testimony. Finally, the Board notes that VA has attempted to schedule the Veteran for a VA examination to determine the nature and etiology of any psychiatric disability found to be present. On multiple occasions from March 2008 through February 2009, VA sent letters to the Veteran at several addresses notifying him of the date of his examination. Although those notices were often returned by the Post Office as undeliverable, the notice scheduling his February 2009 VA examination was not. That notice was sent to an Oklahoma Post Office box, as was a November 2009 Supplement Supplemental Statement of the Case. Indeed, there is no evidence that either document was returned as undeliverable. Nevertheless, the Veteran failed to report for his scheduled VA examination and has offered no evidence of good cause as to the reason for that failure. In December 2009, VA received a change of address notice from the Veteran. However, in light of the extensive efforts already expended by VA, and inasmuch as the Veteran as not offered a good cause for his failure to report for his last scheduled examination, there is no reason to believe that an additional VA examination notice sent to his new address would produce any different results. Absent competent evidence to the contrary, an additional examination will not be scheduled, and the appeal will be decided based upon the evidence of record. 38 C.F.R. § 3.655 (2009). In arriving at this decision, the Board notes that VA's duty to assist the Veteran in the development of his claim is not a one-way street. Olsen v. Principi, 3 Vet. App. 480 (1992). Rather, VA's duty is just what it states, a duty to assist, not a duty to prove a claim with the claimant only in a passive role. If a veteran wants help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 406 (1991). In this regard, the Board notes that generally, the burden is on the Veteran to keep the VA apprised of his whereabouts. If he does not do so, there is no burden on the part of VA to turn up heaven and earth to find him. Hyson v. Brown, 5 Vet. App. 262, 265 (1993) In sum, the Board finds that the Veteran has been afforded a meaningful opportunity to participate in the development of his appeal. He has not identified any outstanding evidence which could support his claim; and there is no evidence of any VA error in notifying or assisting the Veteran that could result in prejudice to him or that could otherwise affect the essential fairness of the adjudication. Accordingly, the Board will proceed to the merits of the appeal. Analysis The Veteran contends that he has PTSD, as a result of multiple sexual assaults by his drill instructor during basic training. He states that he developed a substance dependence problem and that he was only able to complete seven months of his enlistment. He reports that his substance abuse and psychiatric problems have continued since service. Therefore, he maintains that service connection for a psychiatric disability, claimed as PTSD, is warranted. However, after carefully considering the claim in light of the record and the applicable law, the Board is of the opinion that the preponderance of the evidence is against that claim. Accordingly, the appeal will be denied. Service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110. Generally, the evidence must show (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. See Cuevas v. Principi, 3 Vet. App. 542 (1992). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. When the disease identity is established, there is no requirement of evidentiary showing of continuity. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. Service connection for PTSD, in particular, requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) , i.e., a diagnosis which conforms to the criteria set forth in the Diagnostic and Statistical Manual of the American Psychiatric Association, 4th edition (DSM- IV); a link, established by medical evidence, between the current symptoms and an inservice stressor; and credible supporting evidence that the claimed inservice stressor occurred. 38 C.F.R. § 3.304(f) (2009); See Cohen v. Brown, 10 Vet. App. 128 (1997). Where a current diagnosis of PTSD exists, the sufficiency of the claimed in-service stressor is presumed. Id. at 144. Nevertheless, credible evidence that the claimed in-service stressor occurred is also required. 38 C.F.R. § 3.304(f). In cases where PTSD is claimed to be the result of a sexual assault, more particularized requirements are established to verify whether the alleged stressor occurred. Manual M 21-1, Part III, paragraph 5.14c; see Patton v. West, 12 Vet. App. 272, 278-80 (1999). Evidence from sources other than a veteran's service records may corroborate the veteran's account of the stressor incident. 38 C.F.R. § 3.304(f)(3). Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is another type of relevant evidence that may be found in the foregoing sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to, a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. 38 C.F.R. § 3.304(f). The foregoing criteria do not mean that the evidence must actually prove that the incident occurred. It means that the evidence must at least be in equipoise with respect to whether the incident occurred. That is, there must be an approximate balance of positive and negative evidence regarding whether the claimed stressor occurred. In such cases, all reasonable doubt is resolved in favor of the veteran. 38 U.S.C.A. § 5107(b) (West 2002); Patton 12 Vet. App. at 280. In this case, the Veteran contends that his PTSD was manifested in service by a substance abuse problem which he reportedly developed in an effort to self-medicate with respect to the memories associated with the claimed sexual assaults. Although the Veteran's uncle and sister report that the Veteran had a substance dependence problem when he returned from service, the record is negative for any complaints or clinical findings of a psychiatric disability or drug use in service. Indeed, the preponderance of the evidence is negative for such a problem until 2003, more than twenty-five years after the Veteran's separation from service. Moreover, the preponderance of the evidence is negative for any evidence of psychiatric disability prior to that time. A psychiatric disability, identified initially as a depressive disorder and later PTSD, was first manifested in late 2003 and early 2004. A VA examiner indicated that such disability was due to multiple sexual assaults sustained by the Veteran and committed by his drill instructor. However, the VA examiner's opinion was based on a history reported by the Veteran rather than a review of the record. While the Veteran is competent to report that he was sexually assaulted in service, there is no competent evidence of record to substantiate his claim. Indeed, the Veteran's service personnel and service treatment records are completely negative for any evidence of an assault or attendant psychiatric problems. Moreover, his service records are negative of evidence of post-assault behavioral changes, which might tend to verify the occurrence of the stressor. They do not show any requests for a transfer to another military duty assignment; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. In this regard, VA invited the Veteran to submit evidence or information to corroborate his account of the claimed sexual assaults. Despite that invitation, he did not submit records from law enforcement authorities; records from mental health counseling centers, hospitals, or physicians; the results of tests for sexually transmitted diseases; or statements from roommates, fellow service members, or clergy. As noted above, VA did receive statements from family members; however, when considered in light of all the evidence of record, they are unavailing in proving the occurrence of the stressor. The Veteran's service personnel records do show that he received an expeditious discharge from service due to his failure to meet acceptable standards for continued military service. Although the Veteran suggests that such failure was a consequence of the sexual assaults during basic training, the preponderance of the evidence shows otherwise. For example, his work performance following basic and advanced individual training was sufficient to earn him a promotion. In this regard, the preponderance of the evidence shows that his problems started after his May 1976 assignment to his first duty station, Fort Lewis. At Fort Lewis, his commander attributed the Veteran's failure to meet acceptable standards to his immaturity, need for constant supervision, lack of further promotion potential, and a lack of receptiveness to counseling. Neither the commander's assessment, nor any other competent evidence in service, identified the cause of those problems, or related them in any way to drug use, psychiatric problems, or incidents in basic training. Indeed, during the Veteran's July 1976 service separation examination, he reported that he was in good health and denied that he then had, or had ever had, frequent trouble sleeping, depression or excessive worry, or nervous trouble of any sort. Nevertheless, VA scheduled the Veteran for a VA examination to determine the nature and etiology of any psychiatric disability found to be present. In this regard, the examiner could have examined the record and rendered an opinion as to whether a personal assault had, in fact, occurred. 38 C.F.R. § 3.304(f). As noted above, however, multiple attempts to examine the Veteran were unsuccessful. Therefore, the Board must make a determination without the benefit of the findings from such an examination. In light of the foregoing, the Board finds the preponderance of the evidence against the Veteran's claim of entitlement to service connection for a psychiatric disorder, claimed as PTSD. The VA health provider's suggestion of a nexus between the claimed sexual assaults in service and the development of PTSD constitutes no more than a bare transcription of history related by the Veteran. Such a history is not transformed into competent medical evidence merely because the transcriber happens to be a medical professional. LeShore v. Brown, 8 Vet. App. 406, 409 (1995). Therefore, it is not probative of the issue before the Board. By themselves, none of the pieces of evidence is dispositive. However, taken together, the evidence is against a finding that the Veteran's psychiatric disability, claimed as PTSD, was first manifested in or as a result of any incident occurring in service. The only reports to the contrary come from the Veteran and his family members. As lay persons, however, they are only qualified to report on matters which are capable of lay observation. They are not qualified to render opinions which require medical expertise, such as the diagnosis or cause of a particular disability. 38 C.F.R. § 3.159(a); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Therefore, their opinions without more, cannot be considered competent evidence of service connection. 38 C.F.R. § 3.159(a). Because the preponderance of the evidence is against the claim, service connection is not warranted. Accordingly, service connection for a psychiatric disability, claimed as PTSD, is denied. In arriving at this decision, the Board has considered the doctrine of reasonable doubt. However, that doctrine is only invoked where there is an approximate balance of evidence which neither proves nor disproves the claim. In this case, the preponderance of the evidence is against the Veteran's claim. Therefore, the doctrine of reasonable doubt is not applicable. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2009). ORDER Entitlement to service connection for a psychiatric disorder, claimed as PTSD, is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs