Citation Nr: 1031003 Decision Date: 08/18/10 Archive Date: 08/24/10 DOCKET NO. 07-34 724A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a left foot disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran and his daughter ATTORNEY FOR THE BOARD K. Haddock, Associate Counsel INTRODUCTION The Veteran had active military service from April 1945 to December 1947. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In connection with this appeal the Veteran testified at a hearing before the undersigned Veterans Law Judge at the RO in June 2010. A transcript of the hearing is associated with the claims file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). The issue of entitlement to service connection for a left foot disability is addressed in the REMAND following the order section of this decision. FINDINGS OF FACT The Veteran did not participate in combat with the enemy, the Veteran's claimed stressors are not related to his fear of hostile military or terrorist activity, and the Veteran has not been diagnosed with PTSD due to a verified noncombat stressor. CONCLUSION OF LAW PTSD was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.304 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2009), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2009), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the Veteran was mailed a letter in July 2005 advising him of what the evidence must show and of the respective duties of VA and the claimant in obtaining evidence. In July 2007 the Veteran was mailed a letter providing him with appropriate notice with respect to the disability-rating and effective-date elements of his claim. Although the Veteran was not provided adequate notice until after the initial adjudication of the claim, the Board finds that there is no prejudice to the Veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that following the provision of the required notice and the completion of all indicated development the claim was readjudicated. There is no indication or reason to believe that the ultimate decision on the merits of the claim would have been different had complete VCAA notice been provided at an earlier time. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim). The Board also finds the Veteran has been afforded adequate assistance in response to his claim. The RO made attempts to obtain the Veteran's service treatment records (STRs); however, in July 2005, the RO was notified by the National Personnel Records Center (NPRC) that the Veteran's STRs had been destroyed by fire. VA Medical Center treatment records have been obtained. Private medical records are on file. The Veteran was afforded the appropriate VA examination in November 2009. Neither the Veteran nor his representative has identified any outstanding evidence, to include medical records, which could be obtained to substantiate the claim. The Board is also unaware of any such evidence. In sum, the Board is satisfied that any procedural errors in the RO's development and consideration of the claim were insignificant and non prejudicial to the Veteran. Accordingly, the Board will address the merits of the claim. Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. 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 in-service stressor occurred. 38 C.F.R. § 3.304(f). The Board notes that effective July 13, 2010, the regulations for PTSD were amended. The primary effect of the amendment of 38 C.F.R. § 3.304(f) is the elimination of the requirement for corroborating evidence of a claimed in-service stressor if it is related to the Veteran's "fear of hostile military or terrorist activity." In place of corroborating reported stressors, a medical opinion must instead be obtained from a VA, or VA contracted, psychiatrist or psychologist. The Board finds that the amended regulation does not apply in this case because, as discussed below, the evidence of record does not show that the Veteran's claimed stressors were related to his "fear of hostile military or terrorist activity." Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2008); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis At the outset, the Board notes that the Veteran's STRs were deemed to be unavailable as they were noted to have been lost in the fire at the NPRC. As a result, VA duty to assist is heightened and includes an obligation to search for other forms of records that support the claimant's case. Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); Moore v. Derwinski, 1 Vet. App. 401 (1991). There is also a heightened obligation to explain findings and to carefully consider the benefit-of-the-doubt rule in cases where service records are presumed destroyed while in the custody of the government. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). In this regard, the Board notes that the Veteran has not reported that he was treated for mental health problems while in active service. The Veteran has reported that while serving during World War II in Italy, he witnessed many atrocities of war, including watching his friends and comrades get killed due to exploding land mines, enemy fire, etc. He relayed one particular incident where there was a large motor pool garage explosion and he watched six people burn to death. He reported that it was very traumatic to see this happen and not be able to help. At his June 2010 hearing, the Veteran reported that this explosion had been caused by accidental circumstances and was not a result of World War II enemy actions. The RO attempted to verify this stressor and in March 2007 a response was received from the Joint Services Records Research Center (JSRRC). In their response, JSRRC reported that they completed a thorough review of the records at the National Archives and Records Administration. They reported that the Germans surrendered in Italy on May 2, 1945, and that the war in Europe officially ended on May 8, 1945. It was noted that the Veteran entered active service in April 1945 and his unit was sent to Bolzano, Italy in August 1945. JSRRC reported that the Regimental History submitted by the 349th Infantry Regiment for June through October 1945, did not record an explosion in the unit. JSRRC also reported that as the Veteran had not provided any names of the men that died in the explosion, no further research could be conducted. JSRRC reported that the unit's mission for that period was recorded as guarding, processing, evacuating, and repatriating German prisoners of war in their assigned area, which was approximately 5,000 square miles from Roverto, Italy to the Austrian border. JSRRC also reviewed the unit's daily journals (DJ). A review of these records showed that on August 3, 1945, an ammunition dump had exploded and resulted in a fire that burned for several days. There was no indication that there were injuries as a result of that fire. Additionally, the DJs noted that there was also a fire at hospital 21 on August 3, 1945, which completely destroyed two wooden buildings, but which caused no injuries. The only other incident reported in the DJs was that of August 7, 1945, when the unit clerk was wounded by the accidental discharge of a weapon. At his June 2010 Board hearing, the Veteran reported two additional stressors. He reported that while serving in Italy, some Italians and Yugoslavians had a dispute over some land and so a line was established to divide the land. The Veteran reported that this line was called the "Morgan Line." He reported that, one day while serving guard duty on the Morgan Line, he was forced to knock an off-duty soldier in the face with the butt of his rifle because the soldier had been acting out of order. The second reported stressor was an incident where he was forced to shoot the tires out on a truck driven by Yugoslavians trying to run through a United States barricade. The Board notes that neither of these stressor statements contains sufficient information with which to attempt verification. The Veteran was unable to provide names of fellow service members who could corroborate his stressors and he could not provide dates of the incidents. Additionally, the Veteran is noted to have been stationed in Italy after World War II was deemed to have ended and therefore, his reported stressors are not reported to be related to his "fear of hostile military or terrorist activity." In November 2009, the Veteran was afforded a VA examination to determine whether he had PTSD as a result of any verified stressor. The Veteran reported that above described stressors to the VA examiner. After a review of the claims file and examination of the Veteran were conducted, the examiner diagnosed the Veteran with anxiety not otherwise specified (NOS) which was unrelated to his active service. The examiner reported that the Veteran did not meet the criteria for PTSD. Additionally, the examiner reported that the Veteran's reported stressors did not qualify as trauma for PTSD. She did report that the reported stressor of seeing men burn to death may have been sufficient, but that there was no significant impairment from that event. Additionally, as noted above, JSRRC was not able to verify that stressor. A review of the record shows that the Veteran has recently begun to receive mental health counseling at the VA Medical Center and that he has been diagnosed with PTSD by his mental health counselor due to the above described stressor of the explosion and seeing men burn to death. However, as noted above, this claimed stressor has not been verified and was not related to the Veteran's fear of hostile military or terrorist activity. Therefore, the Veteran's lay testimony, by itself, will not be enough to establish the occurrence of the alleged stressor. Moreau v. Brown, 9 Vet. App. 389, 395-96 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). Additionally, a medical professional's opinion based on a post-service examination of a Veteran is not competent evidence that an in-service stressor occurred. Cohen v. Brown, 10 Vet. App. 128, 145 (1997); Moreau, 9 vet. App. 395-96. Therefore, the Veteran's treating VA Medical Center counselor's opinion that the stressor is sufficient to cause PTSD is not enough, by itself, to prove that the stressor occurred. In sum, the Veteran has reported that he has PTSD due to an in service event and that he has been diagnosed at the VA Medical Center with PTSD as a result of that event. However, the stressful event is not able to be verified and the Veteran has not provided any sort of corroborating evidence. Additionally, at his VA examination, the Veteran was not found to have PTSD and the other stressors described by the Veteran were found insufficient to qualify as trauma for PTSD. Therefore, the Board finds that the preponderance of the evidence is against the claim. Accordingly, entitlement to service connection for PTSD is not warranted. ORDER Entitlement to service connection for PTSD is denied. REMAND The Board finds that additional development is required before the Veteran's claim of entitlement to service connection for a left foot disability is decided. The Veteran has reported that during a training exercise, while on active duty, he had been required to hand walk across a 25 foot cable, raised above the ground, from one platform to another. He reported that before he reached the second platform, the soldier behind him grabbed the cable and started his own hand walk across. The Veteran reported that the action caused him to fall approximately 25 feet from the cable to the ground, injuring his left foot. The Veteran reported that after his Captain noticed that he was limping, he was sent to the hospital for examination. Upon examination and X-rays, the Veteran reported that he was found to have broken his left foot. He reported that he was put in traction for 10 days and then kept in the hospital another four weeks for reconditioning. As the Veteran's STRS have been destroyed, this incident cannot be verified through a review of the Veteran's STRs. However, of record is a December 2007 notarized statement from the Veteran's sister. In her letter, she reported that while her brother was in the military she corresponded with him weekly and that she had learned that the Veteran had been involved in a training accident, in which he broke his left foot, and was placed in the hospital while he was on active service. Where service medical records were destroyed, the Veteran is competent to report about factual matters about which he had firsthand knowledge, including experiencing pain during service, reporting to sick call, and undergoing treatment. Washington v. Nicholson, 19 Vet. App. 362 (2005). The Board finds that the Veteran's left foot injury occurred as he has described it. In this regard, the Board notes that the Veteran has provided a clear history of a left foot injury in service. Additionally, while the Veteran's sister was not there at the time of the injury, she reported that she heard of the Veteran's left foot injury through her correspondence with her brother. Also of record is a May 2010 treatment record from the Veteran's private physician. The Veteran was noted to have definitive calcaneal extosis of his left foot. The Veteran's private physician also reported that there was a history of a possible traumatic injury when the Veteran was 18 years old. At his June 2010 Board hearing, the Veteran reported that he had continued to experience pain in his left foot since his separation from active service and that it had continued to get progressively worse over time. The Veteran is competent to state when he first began to experience left foot pain and to state that the symptoms have continued since service. See Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Moreover, the Board has found the Veteran to be credible. In light of the Veteran's claims that he injured his left foot in service, the corroborating lay evidence, and the current medical evidence showing that the Veteran does in fact have a left foot disability; the Board finds that the Veteran should be afforded a VA examination to accurately determine the nature and etiology of any currently present left foot disability. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Additionally, at his June 2010 Board hearing, the Veteran reported that he was being treated by a Dr. L.K. for his left foot disability. There are some treatment notes from this physician of record; however, it does not appear that all the Veteran's private treatment records have been obtained. The Board finds that the Veteran's private medical records regarding treatment for his left foot disability should be obtained before a decision is rendered with regard to this issue. Accordingly, this case is remanded to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. The RO or the AMC should undertake appropriate development to obtain any pertinent evidence identified, but not provided by the Veteran, to include those records identified by the Veteran at his June 2010 Board hearing. If it is unable to obtain any such evidence, it should so inform the Veteran and his representative and request them to submit the outstanding evidence. 2. The Veteran should be afforded a VA examination by a physician with the appropriate expertise to determine the nature and etiology of any currently present left foot disability. The claims file must be made available to and reviewed by the examiner. Any indicated studies should be performed. Based upon the examination results and the review of the claims file, the examiner should provide an opinion with respect to any currently present left foot disability as to whether there is a 50 percent or better probability that the disorders are etiologically related to the Veteran's active service, to include the Veteran's reported left foot injury in service. For the purposes of the opinion, the examiner should presume that the Veteran is a reliable historian. The supporting rationale for all opinions expressed must be provided. 3. The RO or the AMC should undertake any other development it determines to be warranted. 4. Then, the RO or the AMC should readjudicate the Veteran's claim of entitlement to service connection for a left foot disability based on a de novo review of the record. If the benefit sought on appeal is not granted to the Veteran's satisfaction, a Supplemental Statement of the Case should be furnished to the Veteran and his representative and they should be afforded the requisite opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). As noted above, this case has been advanced on the Board's docket. It also must be afforded expeditious treatment by the RO or the AMC. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs