Citation Nr: 1122640 Decision Date: 06/13/11 Archive Date: 06/28/11 DOCKET NO. 06-35 275 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Illinois Department of Veterans Affairs ATTORNEY FOR THE BOARD C. Bruce, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1964 to April 1968. This matter comes before the Board of Veterans' Appeals (Board) from May 2004 and May 2005 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The May 2004 rating decision denied the Veteran's claim for entitlement to service connection for PTSD and the May 2005 rating decision denied the Veteran's claim for entitlement to TDIU. The issue of entitlement to total disability rating based on individual unemployability due to service-connected disabilities (TDIU) 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. FINDINGS OF FACT 1. The competent evidence of record does not demonstrate that the Veteran engaged in combat with the enemy. 2. Credible evidence establishing that the claimed stressors occurred is not of record. 3. The Veteran has not been diagnosed with PTSD based on a verified stressor. CONCLUSION OF LAW PTSD was not incurred in or aggravated by active military duty. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.303, 3.304 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of (1) the information and evidence not of record that is necessary to substantiate a claim, (2) which information and evidence VA will obtain, and (3) which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159 (2010); see also 73 Fed. Reg. 23,353-6 (April 30, 2008) (codified at 38 C.F.R. § 3.159 (May 30, 2008)). See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). After careful review of the claims file, the Board finds that the letters dated in October 2003 and March 2006 fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2010); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In this regard, these letters advised the Veteran what information and evidence was needed to substantiate the claim decided herein. These letters also requested that the Veteran provide enough information for the RO to request records from any sources of information and evidence identified by the Veteran, as well as what information and evidence would be obtained by VA, namely, records like medical records, employment records, and records from other Federal agencies. On March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued a decision in Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006), which held that the VCAA notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The March 2006 letter provided this notice to the Veteran. The Board observes that the October 2003 letter was sent to the Veteran prior to the May 2004 rating decision. The VCAA notice with respect to the elements addressed in this letter was therefore timely. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). VCAA notice in accordance with Dingess, however, was sent after the initial adjudication of the Veteran's claim. Nevertheless, the Board finds this error nonprejudicial to the Veteran. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005). In this regard, the notice provided in the March 2006 letter fully complied with the requirements of 38 U.S.C.A. § 5103(a) (2009), 38 C.F.R. § 3.159(b) (2010), and Dingess, supra, and after the notice was provided the case was readjudicated and an August 2006 statement of the case was provided to the Veteran. See Pelegrini II, supra; Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (a (supplemental) statement of the case that complies with all applicable due process and notification requirements constitutes a readjudication decision). Therefore the Board concludes that the requirements of the notice provisions of the VCAA have been met, and there is no outstanding duty to inform the Veteran that any additional information or evidence in needed. The Board finds that VA has also fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claims and providing a VA examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(4)(i) (2010). In this regard, the Veteran's service treatment records, VA treatment records, and private treatment records are associated with the claims folder. Additionally, the Board notes that the Veteran is receiving Social Security Administration (SSA) benefits. VA has a duty to obtain SSA records when they may be relevant to a claim. Murincsak v. Derwinski, 2 Vet. App. 363, 370-72 (1992). The Board notes that the Veteran's SSA records were indeed obtained and reviewed. The Board recognizes a duty to provide a VA examination when the record lacks evidence to decide the Veteran's claim and there is evidence of (1) a current disability (including persistent or recurrent symptoms of disability), (2) an in- service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established event, injury, or disease. 38 C.F.R. § 3.159(c)(4)(i) (2010); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). VA examinations with respect to the issue of entitlement to service connection for PTSD were obtained in November 2003 and March 2006. 38 C.F.R. § 3.159(c)(4). To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examinations obtained in this case are more than adequate, as they collectively are predicated on a full reading of the VA medical records in the Veteran's claims file. They consider all of the pertinent evidence of record, and the statements of the Veteran, and provide a complete rationale for any opinions stated, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c) (4) (2010). Under the circumstances of this case, "the record has been fully developed," and "it is difficult to discern what additional guidance VA could have provided to the Veteran regarding what further evidence he should submit to substantiate his claim." Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). Therefore, the Board is satisfied that VA has complied with the duty to assist requirements of the VCAA and the implementing regulations and the record is ready for appellate review. Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2010). As a general matter, service connection for a disability on the basis of the merits of such a claim requires (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. Cuevas v. Principi, 3 Vet. App. 542 (1992). That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2010). 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) (2010). Generally, service connection for PTSD requires medical evidence establishing a diagnosis of the disorder, credible supporting evidence that the claimed in-service stressor(s) occurred, and a link, established by medical evidence, between current symptomatology and the claimed in-service stressor(s). 38 C.F.R. § 3.304(f) (2010). With regard to the second PTSD element as set forth in 38 C.F.R. § 3.304(f), evidence of an in-service stressor, the evidence necessary to establish that the claimed stressor actually varies depending on the circumstances of the stressor and the nature of a Veteran's service. The evidence necessary to establish the occurrence of a recognizable stressor during service to support a PTSD diagnosis will vary depending upon whether the Veteran engaged in "combat with the enemy." See 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(f); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). Participation in combat requires that the Veteran have personally participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. See VAOPGCPREC 12-99. If the VA determines the Veteran engaged in combat with the enemy and his alleged stressor is combat-related, then his lay testimony or written statement is accepted as conclusive evidence of the stressor's occurrence and no further development or corroborative evidence is required provided that such testimony is found to be "satisfactory," i.e., credible and "consistent with circumstances, conditions or hardships of service." See 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(f); Zarycki, 6 Vet. App. at 98. If, however, the VA determines either that the Veteran did not engage in combat with the enemy or that he did engage in combat, but that the alleged stressor is not combat related, then his lay testimony, in and of itself, is not sufficient to establish the occurrence of the alleged stressor. Instead, the record must contain evidence that corroborates his testimony or statements. Id. Service department records must support, and not contradict, the claimant's testimony regarding noncombat stressors. Doran v. Brown, 6 Vet. App. 283 (1994); see also Fossie v. West, 12 Vet. App. 1, 6 (1998) (wherein the Court stated, "If the Veteran engaged in combat, his/her lay testimony regarding stressors will be accepted as conclusive evidence of the presence of in-service stressors"). If, however, the Veteran was not engaged in combat, he must introduce corroborative evidence of his claimed in-service stressors. Additionally, if a stressor claimed by a Veteran is related to the Veteran's "fear of hostile military or terrorist activity" and a VA or VA-contracted psychiatrist or psychologist confirms that the claimed stressor is adequate to support a diagnosis of PTSD, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor so long as there is not clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service. Stressor Determinations for Post Traumatic Stress Disorder, 75 Fed. Reg. 39,843, 39,852 (July 13, 2010) (to be codified at 38 C.F.R. § 3.304(f)(3)); 75 Fed. Reg. 41,092 (July 14, 2010) (correcting the effective date of the rule published on July 13, 2010). For purposes of this section, "fear and hostile military or terrorist activity" means that a "Veteran experienced, witnessed or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others,..., and the Veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror." 75 Fed. Reg. at 39,852. The event or circumstances include (but are not limited to), actual or potential improvised explosive device (IED); vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; or attack upon friendly aircraft. The Board notes, initially, that the Veteran is diagnosed with PTSD as noted in both the November 2003 and March 2006 VA psychological examinations and as such the Veteran has a current disability as required by 38 C.F.R. § 3.303. With regard to the November 2003 examination, the Board observes that the examiner noted that he did not have access to the Veteran's claims file and therefore had no access to the Veteran's service treatment records. The examination report did not note any verification of the Veteran's claimed stressor event. Notwithstanding the absence of the claims file and a review of any verified stressors, the examiner opined that it is as likely as not that the Veteran's PTSD symptoms are due to military experiences. However, as will be explained below, the Veteran's claimed stressor has not been verified and therefore the Board finds that regardless of the examiner's opinion, service connection for PTSD must be denied. The Board notes that the Veteran contends that he has PTSD as a result of his active duty service in Vietnam. Specifically the Veteran claims that in the Fall of 1967 or early 1968, he was sent to a crash site in Vietnam to retrieve a pilot and electronic gear from a downed F-105 fighter jet and while at the site he was attacked by the North Vietnamese and received several shrapnel wounds in his back. The Veteran claims that he received a Purple Heart Medal in relation to the aforementioned incident. The Veteran further contends that he currently experiences a great deal of guilt, anger, and resentment, due to his service and the events that he witnessed while on active duty in Vietnam. While the Board acknowledges the Veteran's lay statements that he was involved in combat, the Board finds that the Veteran's testimony is not found to be "satisfactory," i.e., credible and "consistent with circumstances, conditions or hardships of service." In this regard, the Board notes that a July 2006 RO formal finding determined that the information required to verify the stressful event described by the Veteran was insufficient to submit to the U.S. Army and Joint Services Records Research Center (JSRRC) (formerly U.S. Armed Services Center for Unit Records Research (CURR)). Specifically it was noted that the Veteran was assigned to the 34th Tactical Fighter Squadron (TFS) from November 1966 to March 1968. The records note that the 34th TFS was assigned to the Korat Royal Thai Airbase in Thailand during that time and that it was equipped with the F-105D and F fighter-bomber aircraft. During the noted timeframe the 34th TFS lost 19 F-105 aircraft. All but one of the downed aircraft went down over North Vietnam or at sea off the coast of North Vietnam. The only other downed aircraft was lost over Laos and an attempted rescue was made by a pararescueman of Detachment 2, 37th Air Rescue and Recovery Squadron from Udorn, Thailand which found the pilot dead after he ejected from the aircraft. The aircraft crash site was not investigated. The Veteran's service personnel records do not show the receipt of any medals indicative of combat. These records indicate that the Veteran served in Thailand at Korat Royal Thai Air Force Base as an assistant crew chief beginning in December 1966. The Veteran's personnel records do not note any temporary duty assignments to Vietnam. Additionally it is noted that the Veteran's in-service treatment records do not note any treatment for shrapnel wounds to the back and do not show that the Veteran was evacuated to a hospital in Vietnam for treatment of such wounds. The treatment records do contain two treatment notes for other illnesses dating in December 1966 and February 1967, but none from the Fall of 1967 or early 1968. Finally it is noted that there is no record of the Veteran having received a Purple Heart Medal. As such the Board finds that the claimed stressor is not found to be consistent with the circumstances of the Veteran's service. Therefore, verification of the claimed stressor is required. However, with consideration of the above, there is no corroborative evidence or verification of the Veteran's claimed stressor. Additionally, the Board finds that the Veteran's claimed stressor is not related to "fear of hostile military or terrorist activity." With the lack of verification of the Veteran's claimed stressor due to the inconsistency with the Veteran's circumstance of service as well as the absence of corroborating evidence, the Board finds no evidence that the Veteran was confronted with a circumstance that involved threatened serious injury or a threat to his physical integrity with a hostile enemy. In addition, the evidence fails to indicate that the Veteran's response to even the claimed event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. Indeed as noted above, the Veteran has only stated that he experienced guilt, anger, and resentment. As such, the Board finds that the revision to 38 C.F.R. § 3.304(f)(3) is not applicable in this instance. After considering the evidence of record, the Board finds that the Veteran does not have a verified or verifiable stressor. In the absence of a verified or verifiable stressor event which is the cornerstone of a PTSD claim, service connection for PTSD must be denied. 38 C.F.R. § 3.304(f). Without verification of the Veteran's stressors, there is no need to discuss the question of medical nexus. See 38 C.F.R. § 3.304(f). The preponderance of the evidence is against a grant of service connection for PTSD as he has not alleged any in-service stressor event which is verified. As a preponderance of the evidence is against the award of service connection, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). ORDER Entitlement to service connection for PTSD is denied. REMAND While further delay is regrettable, after review of the record, the Board finds that a remand for further development is warranted with respect to the issue of entitlement to TDIU. With respect to the issue of entitlement to TDIU, the Board notes that the Veteran is currently unemployed, although the record is unclear as to exactly why the Veteran is unemployed. In this regard there are varying reports with regard to which of the Veteran's disabilities renders him unemployable. Specifically, various VA treatment notes state that the Veteran's nonservice-connected back injury renders him unemployable. The November 2003 VA psychological examiner noted that the Veteran's symptoms of PTSD were severe and rendered him unemployable. Finally a November 2003 VA examination regarding the Veteran's service-connected hepatitis opined that his hepatitis C symptoms including the associated history of depression rendered the Veteran unemployable. The law provides that a total disability rating may be assigned where the schedular rating is less than total, when the person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disabilities to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16(a). Entitlement to TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2010). In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether the Veteran is eligible to receive TDIU benefits, the Board observes that he is service-connected for infectious hepatitis, currently rated as 20 percent disabling and depression with dementia associated with infectious hepatitis, currently rated at 50 percent disabling. 38 C.F.R. § 4.16(a) (2010). His combined service connected rating is 60 percent. 38 C.F.R. § 4.25 (2010). The Board notes, additionally, that the Veteran may be eligible for TDIU even if some of his individual service-connected disabilities do not render him unemployable. In this regard, there are circumstances under which disabilities may be combined and yet still be considered one disability to meet a 60 percent rating: (1) Disabilities of one or both upper extremities, or one or both lower extremities, including the bilateral factor if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. See 38 C.F.R. § 4.16(a) (2010). In this instance, the Veteran's disabilities, to include infectious hepatitis, currently rated as 20 percent disabling and depression with dementia associated with infectious hepatitis, currently rated at 50 percent disabling, fall under the category of disabilities resulting from a common etiology, and therefore may be combined and considered as one disability. See 38 C.F.R. § 4.16(a)(2) (2010). The Veteran's service-connected disabilities are the result of disabilities, identified above, resulting from a common etiology and therefore, the Board finds that the Veteran is considered to have a 60 percent rating for a single disability, meeting the required schedular criteria. See 38 C.F.R. §§ 4.16(a)(3), 4.25 (2010). Concerning the TDIU claim, VA may not reject a TDIU claim without producing evidence, as distinguished from mere conjecture, that the Veteran can perform work that would produce sufficient income to be other than marginal. See Friscia v. Brown, 7 Vet. App. 294 (1995), citing Beaty v. Brown, 6 Vet. App. 532, 537 (1994). In Friscia, supra, the Court specifically stated that VA has a duty to obtain an examination and an opinion on what effect the service- connected disability has on the Veteran's ability to work. Friscia, at 297. As noted above, a November 2003 VA examination report addressed the Veteran's hepatitis C and its relation to his unemployability. The November 2003 VA examiner evaluated the Veteran and then opined that the Veteran is unable to maintain or sustain gainful employment due to the symptoms of his service-connected hepatitis C and the associated history of depression. In providing this opinion, however, the examiner failed to discuss or provide any rationale for the decision. In particular there was no discussion with regard to the specific symptoms that led the examiner to the conclusion that his hepatitis C and associated depression were the only disabilities currently suffered by the Veteran that render him unemployable. As such, this issue must be remanded to the RO for the purpose of obtaining an addendum opinion from this medical provider that provides a thorough rationale for the provided opinion. With consideration of all of the above, the Board finds that the Veteran should be afforded an examination to determine the impact that the Veteran's service-connected disabilities have on his ability to obtain and maintain employment. Accordingly, the case is REMANDED for the following action: 1. The Veteran's claims file should be returned to the VA examiner who conducted the November 2003 hepatitis C examination that also addressed whether the Veteran's disabilities rendered him unemployable (if possible) or to another qualified examiner for the purpose of obtaining an addendum medical opinion as to the impact his service-connected disabilities have on his employability. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. The entire claims file, including a copy of this remand must be made available to the examiner for review, and the examination report should reflect that such a review was accomplished. The examiner should elicit from the Veteran, and record for clinical purposes, a full employment and educational history. Based on the review of the claims file, the examiner is requested to provide an opinion as to whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), that the Veteran is unable to obtain or maintain gainful employment due solely to his service-connected disabilities, consistent with his education and occupational experience, irrespective of age and any nonservice-connected disorders. A detailed rationale for any opinions expressed should be provided. 2. After completing the above, and any other development deemed necessary, readjudicate the Veteran's remaining claim based on the entirety of the evidence. If the benefits sought on appeal are not granted to the Veteran's satisfaction, he and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. The Veteran 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. 2010). ______________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs