Citation Nr: 1136665 Decision Date: 09/29/11 Archive Date: 10/11/11 DOCKET NO. 08-16 867 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for a disability manifested by nightmares, to include an acquired psychiatric disability. 2. Entitlement to service connection for a disability manifested by dizziness, to include vertigo. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Appellant and his daughter ATTORNEY FOR THE BOARD K. Neilson, Counsel INTRODUCTION The appellant was a member of an Army National Guard unit, with a period of active duty for training (ACDUTRA) from April 8, 1957, to October 16, 1957. The appellant likely had reserve component service until November 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. On August 15, 2011, the appellant testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the claims file. REMAND A "veteran" is defined as "a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable." 38 U.S.C.A. § 101(2) (West 2002). The term "active military, naval, or air service" includes active duty, and "any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty." 38 U.S.C.A. § 101(24) (West 2002); 38 C.F.R. § 3.6(a) (2010); see Biggins v. Derwinski, 1 Vet. App. 474, 477-478 (1991). Active duty for training (ACDUTRA) is defined, in part, as "full-time duty in the Armed Forces performed by Reserves for training purposes." 38 U.S.C.A. § 101(22) (West 2002); 38 C.F.R. § 3.6(c). "The term 'Reserve' means a member of a reserve component of one of the Armed Forces." 38 U.S.C.A. § 101(26). With respect to members of the Army National Guard or Air National Guard, ACDUTRA means full-time duty under section 316, 502, 503, 505 of title 32, or the prior corresponding provisions of law. 38 U.S.C.A. § 101(22)(c). Further, "if a claim relates to period of [ACDUTRA], a disability must have manifested itself during that period; otherwise, the period does not qualify as active military service and claimant does not achieve veteran status for purposes of that claim." McManaway v. West, 13 Vet. App. 60, 67 (1999). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). In May 2007, the appellant filed a claim for VA disability compensation, seeking service connection for nightmares and dizziness, which he indicated had begun in October 1957. He stated that he had served from April 1957 to October 1957. In support of his claim, the appellant reported that he had entered service at Fort Buchanan, Puerto Rica, and from there, was transferred to Fort Knox, Kentucky. He stated that while at Fort Knox, he had firearms training and participated in simulated fight missions. The appellant indicated that since that time he has experienced nightmares and trouble sleeping. The appellant also submitted a certificate of discharge, showing that he was honorably discharged from the United States Army on November 30, 1962, as well as a certificate of military service showing that he was a member of the United States Army Reserve from April 8, 1957, to October 16, 1957, upon which date he was honorably released. The appellant's DD Form 214 shows that he was a member of the Army National Guard during his period of ACDUTRA. It also notes that the appellant had a remaining service obligation of seven years and one month. The claims folder also contains a November 1956 enlistment examination, an April 1957 examination report, and an October 1957 report of medical history, apparently provided by the appellant. The agency of original jurisdiction (AOJ) sought to verify the appellant's service dates and obtain his service treatments records (STRs) by means of an electronic request in May 2007. The records request listed the appellant's service dates as being from April 8, 1957, to October 16, 1957. The National Personnel Records Center (NPRC) responded that same month by stating that there were no STRs or Surgeon General Office (SGO) records on file, as those records were fire related. The NPRC went on to state, however, that if the appellant was treated and could supply the necessary information, a request for records should be made utilizing PIES (Personnel Information Exchange System) code M05. The NPRC also responded to the request for verification of service by stating that the appellant had active duty for training only from April 8, 1957, to October 16, 1957. In a March 2009 letter, the RO informed the appellant that his STRs may have been destroyed in the 1973 fire at the NPRC. The RO requested that the appellant complete the enclosed NA Form 13055 so as to enable a thorough search for records. The appellant returned the completed NA Form 13055 that same month, stating that he had been treated for depression, nightmares, dizziness, and heart palpitations from October 17, 1957, to June 15, 1958, at Vega Baja, Puerto Rico, and Fort Buchanan. He reported having been assigned to Tank Company, 295th Infantry, at the time. The Board notes that where records are missing, VA has a heightened duty to assist. See Moore v. Derwinski, 1 Vet. App. 401, 406 (1991). Here, although the NPRC verified that the appellant's period of service from April 8, 1957, to October 16, 1957, was ACDUTRA, the claims folder contains conflicting evidence as to whether the appellant was serving in a Reserve or National Guard unit at that time. Further, although there is evidence that the appellant served as a member of the Army Reserves until November 1962, it is not clear whether he had any additional periods of ACDUTRA or inactive duty training, the determination of which is particularly important given the fact that the appellant indicated treatment subsequent to his verified period of ACDUTRA. Thus, a remand is necessary to clarify the appellant's service dates, branch(es) of service, and all periods of active duty, ACDUTRA, or inactive duty training. On remand, the appellant's complete military personnel records must be obtained, if available, and associated with the claims folder. Moreover, after its initial request, the RO submitted another electronic request for records using PIES code M05. The RO stated that it was seeking all STRs and SGOs for the appellant. The RO indicated that should the appellant's STRs and SGOs be unavailable, a search should be conducted for sick and/or morning reports for Tank Company, 295th Infantry, for the period from April 8, 1957, to October 16, 1957, for remarks pertaining to Vega Baja and Ft. Buchanan. In response, the NPRC indicated that the search period must be narrowed to three months. The RO resubmitted the request, breaking it up into three different records requests. In response, the NPRC indicated that morning reports contain status remarks on personnel assigned to a unit, and not unit activities and history. The RO was directed to submit its request for historical data pertaining to the activities of a unit using request code 55 USIN. In October 2010, a formal finding on the unavailability of STRs was issued. The notice indicated that all possible sources had been pursued to obtain the appellant's STRs and no additional locations existed from which to obtain records. It was concluded, therefore, that further efforts to locate the information would be futile. VA's duty to assist claimants in obtaining evidence necessary to substantiate their claims includes making "reasonable efforts to obtain relevant records (including private records)," as long as the claimant "adequately identifies" those records and authorizes the Secretary to obtain them. 38 U.S.C.A. § 5103A(b)(1) (West 2002) Loving v. Nicholson, 19 Vet. App. 96, 101-02 (2005). As part of that assistance, "whenever the Secretary attempts to obtain records from a Federal department or agency . . . the efforts to obtain those records shall continue until the records are obtained unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile." 38 U.S.C. § 5103(b)(3). Cases in which VA may conclude that no further efforts are required include those in which the Federal department or agency advises VA that the requested records do not exist or the custodian does not have them. 38 C.F.R. § 3.159(e) (2010). Notwithstanding the AOJ's formal finding regarding the unavailability of the appellant's STRs, it is unclear from the record before the Board whether the appellant's STRs are indeed unavailable, whether further information was necessary in order to conduct a thorough search for such records, or whether the AOJ made the proper request to the NPRC to permit a search for the appellant's STRs or alternative supporting records. Indeed, the NPRC's response seems to indicate that the request for morning and/or sick reports was made to an improper address code. Further, it appears that the RO may have misidentified the subject of its request as being unit activity rather than information specific to the appellant. Moreover, the dates provided with the AOJ's request, although coincident with the appellant's verified period of ACDUTRA, do not correspond with the dates of reported treatment, as proffered by the appellant on NA Form 13055. Given the response from the NPRC, the Board cannot be certain that the appellant's STRs, or other supporting records, do not exist or that further efforts to obtain them would be futile. See 38 U.S.C. § 5103(b)(3); 38 C.F.R. § 3.159(c)(2). Accordingly, because it has not been properly determined that the appellant's STRs are unattainable or nonexistent, and because they may contain information relevant to his service connection claims, the Board finds that the matters must be remanded for the AOJ to again attempt to obtain these potentially relevant records. See Golz v. Shinseki, 590 F.3d 1317, 1323 (2010) ("[I]f there exists a reasonable possibility that the records could help the [appellant] substantiate his claim for benefits, the duty to assist requires VA to obtain the records"). If, on remand, it is determined that the appellant's STRs are indeed nonexistent or unattainable, the appellant must be notified of that determination in compliance with 38 C.F.R. § 3.159(e). Also on remand, the appellant must be adequately notified of the information and evidence necessary to substantiate claims in accordance with the Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2011), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2010). These provisions provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim. They also require VA to notify the claimant and the claimant's representative 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 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. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court), held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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. Here, the VCAA notice letter provided to the appellant did not specifically inform him of the information and evidence necessary to substantiate a claim based on National Guard or Reserve duty service. Accordingly, on remand, the appellant should be sent a new VCAA letter notifying him of the information and evidence necessary to substantiate his service connection claim, which notice includes specific information on the element of veteran status based on National Guard and Reserve duty service. VA's duty to assist also includes the duty to provide a medical examination or obtain a medical opinion "when such an examination or opinion is necessary to make a decision on the claim." 38 U.S.C.A. § 5103A(d). 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); 38 C.F.R. § 3.159(c)(4). Here, the appellant was provided with a VA psychiatric examination in November 2010. The examiner noted that neither the claims folder nor any computerized records were available for review. The examiner considered the appellant's subjective complaints of depression, restless sleep, and nightmares, and his self reported history of harassment and nightmares in service. The examiner diagnosed the appellant as having depression, not otherwise specified, and indicated that it would be pure speculation to connect his current depression to service. In January 2011, the examiner who conducted the November 2010 VA examination was provided with the appellant's claims folder for review. The examiner noted that the appellant indicated that he was in good health at the time of enlistment and that on his October 1957 report of medical history, the appellant reported frequent trouble sleeping, nightmares, depression, and excessive worry. The examiner also noted that the appellant had complained of harassment in service. The examiner opined that it was at least as likely as not that the appellant could have been suffering from an adjustment disorder with depressed mood and anxiety in 1957. He stated, however, that there was not enough information to connect any in-service adjustment disorder to the appellant's currently diagnosed depression. He listed the factors weighing against a connection as: the appellant receiving psychiatric treatment only since 2009; the absence of evidence of ongoing psychiatric problems from service; and the fact that the appellant had not been prescribed any psychiatric medications. With regard to the examiner's conclusion, the Board notes that "[l]ay testimony is competent . . . to establish the presence of observable symptomatology and 'may provide sufficient support for a claim of service connection.'" (quoting Layno v. Brown, 6 Vet. App. 465, 469 (1994)). Further "[s]ymptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage v. Gober, 10 Vet. App. 488, 496 (1997); see 38 C.F.R. § 3.303(b) (2010) (providing that the second and third elements of service connection can be demonstrated through continuity of symptomatology). Here, the appellant has testified that he has experienced nightmares since service. His daughter also testified that, for as long as she could remember, the appellant yelled while sleeping and talked about having nightmares. The appellant's reported symptoms are capable of lay observation and as such must be considered in connection with his claim of service connection. Accordingly, the Board finds that on remand, the appellant should be scheduled for another examination with the examiner who provided the November 2010 examination, if still available. Specifically, the examiner should elicit from the appellant a detailed history regarding the symptoms of his claimed disability. The examiner must specifically inquire as to the duration of any symptoms. The examiner should then provide an opinion as to whether any diagnosed disability manifested by nightmares, to include the appellant's diagnosed depression, is attributable to any indentified period of active duty, ACDUTRA, or inactive duty training. In so doing, the examiner must specifically consider any lay evidence of continuity of symptomatology. Also in November 2007, the appellant was provided a VA examination in connection with his claim of service connection for a disability manifested by dizziness. The examiner noted a post-service diagnosis of vertigo, rendered in 2004. She further noted that the appellant had denied dizziness on his 1957 report of medical history. The examiner thus opined that the appellant's dizziness/vertigo was not caused by or a result of service. Although the VA examiner provided support for her opinion, given the development required on remand, the Board finds that the November 2010 examination report should be returned to the examiner for an addendum that specifically considers the appellant's lay assertions that he has had dizziness since service, as recorded in his August 2011 hearing testimony, as well as the private medical evidence of records and any other lay or medical evidence associated with the claims folder on remand. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that it is incumbent on the VA examiner to consider all of the relevant evidence before forming an opinion). The Board notes that the appellant referred to potentially relevant private treatment records during his August 2011 Board hearing. It appears that these records were previously associated with the claims folder; on remand, however, the appellant should be asked to provide information regarding any relevant private treatment and the AOJ should seek to obtain any records not previously associated with the record. Accordingly, the case is REMANDED to the AOJ for the following action: 1. The AOJ should send to the appellant a new VCAA notice letter. The letter should specifically notify him of the information and evidence necessary to substantiate a claim of service connection based on Reserve and/or National Guard service. The appellant should be given an opportunity to respond to the notice, and any additional information or evidence received should be associated with the claims file. 2. The AOJ should contact the appellant and request that he identify the names, addresses and approximate dates of treatment for all health care providers, VA and private, who may possess additional records pertinent to his claims. The AOJ should attempt to obtain and associate with the claims folder any medical records identified by the appellant that are not already of record. The AOJ should specifically request from the appellant that he provide the full name, address, and date(s) of treatment for the physician and/or facility(ies) where he reportedly received treatment related to his dizziness, to include his private cardiologist. Following receipt of that information, the AOJ should contact the physician(s) or facility(ies) in question, with a request that copies of any and all records pertaining to the appellant on file and not previously provided to the AOJ be forwarded. The appellant should be requested to sign the necessary authorization for release of such private medical records to the VA. 3. The AOJ must confirm the appellant's military service and verify dates of service. The appellant should be asked to identify, with as much specificity as possible, each unit (National Guard or reserve) to which he was assigned and the dates of those assignments. The AOJ should determine whether that service included any periods of active duty, ACDUTRA or inactive duty training, and, to the extent feasible, ascertain the dates for each such period of service. As part of that process, the AOJ should attempt to obtain a copy of any DD 214 or other separation certificate, as well as the appellant's Official Military Personnel File (OMPF) and/or Military Personnel Record Jacket (MPRJ) or the like that may have been maintained with either his National Guard unit or reserve unit. Another attempt should also be made to obtain any treatment records prepared by or maintained by any reserve unit or the NPRC. (See discussion above regarding action necessary to follow-up on earlier request to NPRC.) The appropriate agency(ies) must be contacted to obtain the records. All attempts to obtain this data, and any responses received, should be documented in the claims folder. 4. After the development in paragraphs 1 through 3 above has been completed, the appellant should be scheduled for a VA examination with the examiner who provided the November 2010 psychiatric examination and January 2011 addendum, if the examiner is still available. The claims folder, and a copy of this remand, must be provided to and reviewed by the examiner prior to conducting the required examination. (Advise the appellant that failure to appear for an examination as requested, and without good cause, could adversely affect his appeal. See 38 C.F.R. § 3.655 (2010).) The examiner should be asked to review the entire record and take a detailed history from the appellant with respect to the duration and types of symptoms he has purportedly experienced since service. The examiner should then provide an opinion as to the medical probabilities that any depression or other diagnosed disability manifested by nightmares is attributable to any period of active duty, ACDUTRA, or inactive duty training. The examiner must specifically consider the lay evidence regarding continuity of symptomatology, as recorded in the record. The examiner should set forth the medical reasons for accepting or rejecting the appellant's statements regarding continuity of symptoms since service. If the November 2007 examiner is no longer available, the appellant should be scheduled for a VA examination with another clinician to determine whether he has a currently diagnosed disability manifested by nightmares and, if so, the likelihood that such disability is attributable to any period of active duty, ACDUTRA, or inactive duty training. As part of that examination, the examiner should obtain a detailed history of the appellant's symptoms as observed by him and others during and since service. The examiner should set forth the medical reasons for accepting or rejecting the appellant's statements regarding continuity of symptoms since service. All opinions should be set forth in detail and explained in the context of the record. (If the appellant fails to appear for examination, the examiner should review the record and provide answers to the questions presented above, to the extent possible.) 5. After the development in paragraphs 1 through 3 above has been completed, the AOJ should request that the examiner who conducted the November 2010 neurological examination, if she is still available, provide an addendum that takes into account the appellant's assertion that he has had dizziness since service. As part of the requested addendum, the examiner should also comment on any lay or medical evidence associated with the claims folder on remand. The examiner should also be asked to opine on the likely etiology of the appellant's vertigo, based on the evidence of record, to include consideration of whether the appellant's vertigo is attributable to any period of active duty, ACDUTRA, or inactive duty training, to include any psychiatric symptoms experienced therein. The examiner should set forth the medical reasons for accepting or rejecting the appellant's statements regarding continuity of symptoms since service. If the VA examiner determines that she cannot provide the requested addendum without re-examining the appellant, or if the November 2010 examiner is no longer available, the AOJ should schedule the appellant for a VA examination in connection with the claim. The examiner should provide an opinion as to whether the appellant suffers from vertigo or some other disorder that results in his symptoms of dizziness. The examiner should then opine as to whether any current disability manifested by dizziness is attributable to any period of active duty, ACDUTRA, or inactive duty training. The examiner should set forth the medical reasons for accepting or rejecting the appellant's statements regarding continuity of symptoms since service. 6. The AOJ must ensure that all medical examination reports and opinion reports comply with this remand and the questions presented in the request. All findings and opinions should be set forth in detail and explained in the context of the record. If any examiner determines that he/she cannot provide an opinion on the issue at hand without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. See Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). If any report is insufficient, it must be returned to the examiner/reviewer for necessary corrective action, as appropriate. 7. After undertaking any other development deemed appropriate, the AOJ should re-adjudicate the issues on appeal. If any benefit sought is not granted, the appellant should be furnished with a supplemental statement of the case (SSOC) and afforded an opportunity to respond before the record is returned to the Board for further review. Thereafter, the case should be returned to the Board for further appellate review. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the appellant until he is notified. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. 2011). ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2010).