Citation Nr: 1014232 Decision Date: 04/14/10 Archive Date: 04/29/10 DOCKET NO. 07-30 790 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for a psychiatric disorder, to include post-traumatic stress disorder (PTSD) and anxiety. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L. J. Vecchiollo, Counsel INTRODUCTION The veteran served on active duty from August 1942 to October 1945, and from May 1946 to March 1947. His report of discharge from his first period of active service notes that he served in the following battles and campaigns: Air Offensive Europe, May 1945, Normandy, May 1945, Northern France, May 1945, Ardennes, May 1945, Rhineland, May 1945, and Central Europe, June 1945. He was awarded the European, African, and Middle Eastern Campaign Medals. This appeal arises before the Board of Veterans' Appeals (Board) from a rating decision rendered in August 2006 by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona in which PTSD (also claimed as anxiety, chest pains, and stress disorder) was denied. The Board remanded the claim in September 2009 for further development and consideration. The issue has been recharacterized to more accurately reflect the medical evidence and is as reflected on the first page of this decision. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran experienced traumatic events while serving in the European Theatre of Operations during World War II. 2. The Veteran is not currently shown to have a diagnosis of PTSD due to any event or incident of his active service. 3. The preponderance of the medical evidence does not show that the Veteran has a psychiatric disorder to include PTSD and anxiety due to service. CONCLUSION OF LAW The criteria for service connection for a psychiatric disorder to include PTSD and anxiety are not met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist 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). 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, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The RO provided the appellant pre-adjudication notice by letters dated in July 2005, September 2005, and March 2006. 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. The National Personnel Records Center informed the RO that the Veteran's service treatment records are lost and presumed destroyed in the 1973 fire. Procedures to locate these records have been followed to no avail. Therefore, the Board finds that additional attempts to obtain these records would be futile. 38 C.F.R. § 3.159(c)(2) and (3). When, as here, the Veteran's service treatment records are lost or missing, VA has a heightened duty to consider the applicability of the benefit-of-the-doubt rule, to assist him in developing the claim, and to explain the reasons and bases for its decision ...." See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005), citing Russo v. Brown, 9 Vet. App. 46, 51 (1996). Although there is a heightened obligation to more fully explain the reasons and bases for a decision, when, as here, there are missing service treatment records, this, alone, does not obviate the need for the veteran to still have medical nexus evidence supporting his claim by suggesting a correlation between his currently claimed condition and his military service. See Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore v. Derwinski, 1 Vet. App. 401, 406 (1991) and O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)). Although the unavailability of the Veteran's service treatment records is unfortunate, the Veteran has never stated that he was treated for the disabilities at issue in service. In fact, he noted treatment for anxiety starting in 2005, and these private treatment records were obtained. Furthermore, as will be noted below, the Board accepts the Veteran's participation in a combat theatre and exposure to the kinds of stressors claimed. Therefore, the Veteran will not be prejudiced by the unavailability of these records. VA sent the Veteran a letter dated on November 3, 2009, informing him that he would be scheduled for a VA examination. He was also informed that when a claimant, without good cause, fails to report for such examination, the claim shall be rated based on the evidence of record. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant or the death of an immediate family member. The Veteran cancelled his scheduled VA examination later that month. The Veteran has not provided evidence of "good cause" for failing to report to his VA examination. Under 38 C.F.R. § 3.655, the claim must be considered bases on the evidence of record, in light of the failure of the Veteran to attend a VA examination in this original claim for service connection. If a veteran wishes help in developing his claim, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining putative evidence. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Given the Veteran's choice not to submit to a VA examination, no further action is necessary to meet the requirements of the VA's duty to assist the Veteran. Id.; see also 38 C.F.R. § 3.655(b). VA has assisted the appellant in obtaining evidence, scheduled the Veteran for a medical examination and medical opinion as to the etiology and severity of disability, and afforded the Veteran the opportunity to give testimony before the Board. All known and available post-service records relevant to the issues on appeal have been obtained and associated with the appellant's claims file; and the appellant has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim at this time. II. Analysis The Veteran claims service connection for, in essence, a psychiatric disorder (claimed as anxiety, stress reaction, chest pains, and PTSD). Service connection may be granted when the veteran has a disability as the result of a disease or injury incurred or aggravated by peacetime service that is not the result of the Veteran's own willful misconduct. 38 U.S.C.A. § 1110. Service connection for a psychosis can be granted if the condition becomes manifest to a degree of 10 percent within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). 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 C.F.R. § 3.303(d). To establish service connection for a disability, a claimant must submit: (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) competent evidence of a nexus between the current disability and the in-service disease or injury. Pond v. West, 12 Vet. App. 341, 346 (1999). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); 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) and 38 C.F.R. § 4.125 (requiring PTSD diagnoses to conform to the criteria in the DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (4th ed. 1994) (DSM-IV)). The evidence of record shows that the Veteran served in the USAAF from August 1942 to March 1947, and that his primary specialty was as a driver. Yet, separation documents from the War Department reveal the Veteran served on active duty in the Army of the United States Air Corps from August 1942 to October 1945, and in the Regular Army Air Corps from May 1946 to March 1947 with his military occupational specialty (MOS) during both periods of service as an airplane propeller mechanic. A summary of his duties for his first period of service shows he served overseas for 18 months in the European Theatre of Operations in a heavy bomb squadron inspecting, repairing, and maintaining propellers on B-24 bombers. It is noted that this document also shows the Veteran performed on stage in an Army G.I. play as a singer and that he traveled to Belfast, Ireland, Paris, France, London, England, and other cities in England as part of the cast of this play. A summary of his duties for his second period of service shows he served in the continental US for 8-1/2 months. His official document of honorable discharge from his period of service ending in October 1945 credits him with participation in the following battles and campaigns: Air Offensive Europe, May 1945, Normandy, May 1945, Northern France, May 1945, Ardennes, May 1945, Rhineland, May 1945, and Central Europe, June 1945. He was awarded the European, African, Middle Eastern Campaign Medals. The Veteran's averred stressors involve the cleaning and maintaining of planes that came back daily damaged by enemy fire and sometimes covered in the blood of killed and wounded service members. He reported watching planes crash on landing, some because they were damaged by enemy fire, others because they crashed into other planes while attempting to land, killing and wounding those on board. He reported that pilots and air crew he knew were killed, and one friend in particular. The Veteran's reported stressors are consistent with the circumstances of active service he would have preformed with his MOS in air combat support for a heavy bomber squadron deployed overseas in combat during war. His service on stage is noted, but not inconsistent with his service in combat support. This is so because the geographic locations for which he was recognized by the service department for combat support include areas other than those in which he performed, i.e., Normandy, Ardennes, and Rhineland. Thus, even if it was suspected that the service department did not distinguish between combat-related support and entertainment in awarding the Veteran credit for participation in the listed battles and campaigns (which is not likely), the lack of overlap in geographic location would imply that the Veteran's presence in places where he did not perform was in support of air combat, as his MOS would strongly suggest. Given the consistency of the Veteran's MOS and the time and place of his service with the stressors he avers, and the service department's acknowledgment of his participation in the battles and campaigns identified on his discharge documents, the Board accepts the Veteran's participation in a combat theatre and exposure to the kinds of stressors claimed. See 38 U.S.C.A. § 1154(b); see also Pentecost v. Principi, 16 Vet. App. 124, 128-29. (2002). Here, in light of the Veteran's inservice history, the Board presumes the Veteran suffered traumatic events, but the medical evidence must still indicate current disability related to these events. The Board finds such competent evidence lacking. There is no diagnosis of PTSD contained in the record. Private treatment records show treatment for anxiety beginning in 2002. The Veteran genuinely believes that he has a psychiatric disorder, to include PTSD and anxiety, and that it was incurred in service. The Veteran is competent to comment on his symptoms. However, as a layperson, lacking in medical training and expertise, the Veteran cannot provide a competent opinion on a matter as complex as the diagnosis or etiology of an acquired psychiatric disorder and his views are of no probative value. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (competent testimony "can be rejected only if found to be mistaken or otherwise deemed not credible"); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Veteran has recently noted that he has had "anxiety" since service. However, there is no competent evidence of a medical diagnosis of an anxiety disorder prior to 2002, and there is no competent evidence relating the current anxiety disorder to service. See McManaway v. West, 13 Vet. App. 60, 66 (1999) (where there is assertion of continuity of symptomatology since service, medical evidence is still required to establish "a nexus between the continuous symptomatology and the current claimed condition"), vacated on other grounds sub nom McManaway v. Principi, 14 Vet. App. 275 (2001). The preponderance of the evidence is against the claim; there is no doubt to be resolved; and service connection is not warranted. ORDER Entitlement to service connection for psychiatric disorder, to include PTSD and anxiety, is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs