Citation Nr: 1301440 Decision Date: 01/14/13 Archive Date: 01/23/13 DOCKET NO. 06-16 710 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD M. Donohue, Counsel INTRODUCTION The Veteran had active service from May 1968 to April 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a July 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In May 2010, August 2011, and December 2011, the Board remanded the claim for further development. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDINGS OF FACT 1. The preponderance of the competent and credible evidence establishes that the Veteran does not have a valid diagnosis of PTSD. 2. The evidence of record does not support a finding that a relationship exists between the Veteran's currently diagnosed anxiety or depression and any event or incident of his active service. CONCLUSIONS OF LAW 1. The Veteran does not have PTSD due to disease or injury that was incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). 2. The Veteran's acquired psychiatric disabilities, manifested by anxiety and depression, are not due to a disease or injury that was incurred in or aggravated by active service; nor may a psychosis be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS After the evidence has been assembled, the Board is responsible for evaluating the entire record. 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012). A "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Furthermore, the Board notes that it has reviewed all of the evidence in the claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis will focus specifically on what evidence is needed to substantiate the issue adjudicated herein and what the evidence in the claims file shows, or fails to show, with respect to this claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). I. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2011), 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. The law and regulations 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 VA 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. In March 2006, the Court issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006) and held that the notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, 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. Upon receipt of an application for "service connection," therefore, VA is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The Board also notes that the Court has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to 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, supra. In the present case, VA issued VCAA notice letters to the Veteran in March 2005 and in an undated letter following the Board's May 2010 remand. These letters informed the Veteran of what evidence was required to substantiate his service connection claim and of his and VA's respective duties for obtaining evidence. A March 2006 letter also informed the Veteran as to the law pertaining to the assignment of a disability rating and effective date as the Court required in Dingess. As VCAA notice was not completed prior to the initial AOJ adjudication of the claim, such notice was not compliant with Pelegrini. However, since the case was readjudicated thereafter, there has been no prejudice to the Veteran in this regard. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In short, the record indicates that the Veteran received appropriate notice pursuant to VCAA. The VCAA also provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. The law provides that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. An examination is deemed "necessary" if the record does not contain sufficient medical evidence for VA to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). No examination was provided to the Veteran; as further discussed below, however, the Veteran failed to appear for his scheduled January 2012 VA examination without providing good cause. In Hyson v. Brown, 5 Vet.App. 262, 265 (1993), the Court held that VA must show that a claimant lacked 'good cause' for failing to report for a scheduled examination. As noted above, neither the Veteran nor his representative have provided an 'adequate reason' or 'good cause' for his failure to report to the January 2012 VA examination. The examination request includes the Veteran's last known address as verified in December 2011. No cogent reason has been provided for the Veteran's absence, and he has not since requested that the examinations be rescheduled. The duty to assist in the development and the adjudication of a claim is not a one-way street. Woods v. Gober, 14 Vet.App. 214, 224 (2000); see also Hurd v. West, 13 Vet.App. 449, 452 (2000) (the Veteran cannot passively wait for help from VA). A claimant has a responsibility to present and support a claim for benefits under laws administered by the VA. 38 U.S.C.A. § 5107(a). The AMC contacted the Veteran and verified his current address. See December 2011 report of contact. The Veteran was scheduled for an additional VA examination in January 2012. However, he failed to report for this examination. The record reflects that this examination request was sent to the Veteran's last known address. In light of the Veteran's disinclination to fully cooperate with the process, and that good cause for his failure to report for VA examination has not been shown, pursuant to 38 C.F.R. § 3.655, the Board must make a decision on the claim based on the evidence of record. In the present appeal, the Board finds that reasonable efforts have been made to assist the Veteran in obtaining evidence necessary to substantiate his claim, and that there is no reasonable possibility that further assistance would aid in substantiating it. Thus, VA's duty to assist has been met. As noted, this case has been the subject of three remands from the Board. In May 2010, the Board expanded the Veteran's claim of entitlement to service connection for PTSD to include all psychiatric disabilities. The appeal was then remanded in order to provide the Veteran with VCAA notice. In addition, the Board requested the RO contact the Veteran and ask that he identify all providers of psychiatric treatment he has received since his discharge from active duty service. Any identified records were to be obtained and associated with the claims file. The Board also requested that the RO forward the Veteran's stressor information to the United States Army and Joint Services Records Research Center (JSRRC), or any other appropriate records depository, for research into corroboration of the claimed stressors. Finally, if deemed necessary, the Veteran was to be scheduled for a VA examination. The record reflects that the VA Appeals Management Center (AMC) sent the Veteran an undated corrective VCAA notice letter to address the issue of a psychiatric disability other than PTSD. This letter also requested that the Veteran submit any relevant psychiatric treatment records related to his claimed condition or authorize VA to obtain records on his behalf. The letter also requested the Veteran provide additional details surrounding his alleged stressors. T he Veteran's alleged stressors were sent to the Air Force office of Special Investigations which verified that over 100,000 people demonstrated in protest of the reversion of Okinawa to Japan and that many protests resulted in violent tactics. Although the Veteran was scheduled for a VA examination in December 2010, he failed to report for his scheduled examination. In the August 2011 remand, the Board noted that while the Veteran did not appear for his scheduled VA examination, a December 30, 2010 All Appointments printout revealed that he received VA treatment on numerous occasions from October 2006 to June 2009. As these records had not been requested, the Board remanded the Veteran's claim in order to obtain his treatment records. Following the August 2011 remand, the Veteran's VA treatment records were obtained and associated with his claims folder. In the December 2011 remand, the Board noted that the Veteran's representative had raised the issue of whether notice of the VA examination scheduled for December 14, 2010, for which the Veteran failed to report, was sent to his correct address. As a result, the Board remanded the Veteran's claim on order to obtain a copy of the notification letter that was sent to the Veteran for the December 14, 2010 examination, verify the Veteran's current address, and schedule him for a new VA examination. The record reflects that the AMC contacted the Veteran and verified his current address. See a December 2011 report of contact. The claims folder also states that a copy of the notification letter that was sent to the Veteran for the December 14, 2010 VA examination was unavailable. Id; see Kyhn v. Shinseki, 24 Vet. App. 228, 235 (2011) ("The regular practices of VA do not include maintaining a hard copy of [a] veteran's notice of his or her scheduled VA examination.") The Veteran was scheduled for an additional VA examination in January 2012. However, he failed to report for this examination. The record reflects that this examination request was sent to the Veteran's last known address. Based on the above, the Board's remand instructions have been complied with to the extent possible. See Stegall v. West, 11 Vet. App. 268, 271 (1998) [where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance]; see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) [although under Stegall VA is required to comply with remand orders, substantial compliance, not absolute compliance, is required]. The record contains the Veteran's service treatment records, service personnel records, VA treatment records, the Veteran's stressor statements, and reports from the Department of the Air Force. Review of the claims file reflects that the Veteran has been granted disability benefits by the Social Security Administration (SSA). A June 2006 VA treatment record, however, notes that the Veteran received SSA benefits for a hip disability. Therefore, the records are not relevant to the issue of service connection for an acquired psychiatric disability which is currently on appeal. VA has a duty to obtain SSA records when they may be relevant. See Voerth v. West, 13 Vet.App. 117, 121 (1999); Baker v. West, 11 Vet.App. 163, 169 (1998); Murincsak v. Derwinski, 2 Vet.App. 363, 370-72 (1992). The Board has carefully reviewed the Veteran's statements and concludes that he has not identified further evidence not already of record. The Board has also reviewed the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2012). The Veteran has been accorded the opportunity to present evidence and argument in support of his claims. He has declined to exercise his option of a personal hearing. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and that no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. Essentially, all available evidence that could substantiate the claim has been obtained. There is no indication in the file that there are additional relevant records that have not yet been obtained. II. Law and Regulations In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. See 38 C.F.R. § 3.303(d) (2012). In order to establish service connection for the claimed disorder, there must be (1) competent and credible evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) competent and credible evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet.App. 1, 8 (1999). Service connection may also be awarded for certain disabilities, such as psychoses, which manifest to a compensable degree within a year of service separation. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Effective August 28, 2006, 38 C.F.R. § 3.384 was modified to further clarify the term 'psychoses' for the purposes of 38 C.F.R. § 3.309(a). See 71 Fed. Reg. 42, 785 (July 28, 2006). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology. See Barr v. Nicholson, 21 Vet.App. 303, 307 (2007). A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was 'noted' during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. Savage v. Gober, 10 Vet.App. 488, 495-96 (1997); 38 C.F.R. § 3.303(b). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for posttraumatic stress disorder (PTSD) requires: (1) medical evidence establishing a diagnosis of the disorder; (2) credible supporting evidence that the claimed in-service stressor occurred; and (3) a link established by medical evidence, between current symptoms and an in-service stressor. 38 C.F.R. § 3.304(f) (2012). The PTSD diagnosis must be made in accordance with the criteria of Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). 38 C.F.R. § 4.125(a) (2012). There are several avenues to document an in-service stressor, other than obtaining verification from the Joint Services Records Research Center (JSRRC) or other government records repository: an in-service PTSD diagnosis with lay testimony; combat service with lay testimony; prisoner of war status with lay testimony; lay evidence of personal assault with appropriate corroboration; and a stressor related to Veteran's fear of hostile military or terrorist activity, with appropriate medical evidence. 38 C.F.R. § 3.304(f) (2012). Recent regulatory amendments changed the evidentiary standards regarding stressors based on a Veteran's fear of hostile military or terrorist activity. See Stressor Determinations for Posttraumatic Stress Disorder, 75 Fed. Reg. 39,843, 39,852 (July 13, 2010) (to be codified at 38 C.F.R. § 3.304(f)(3) ), corrected by 75 Fed. Reg. 41,092 (July 15, 2010). These amendments are applicable to the Veteran's appeal. See Stressor Determinations for Posttraumatic Stress Disorder, 75 Fed. Reg. 39,843 (stating that the amendments are applicable to appeals currently before the Board that have not yet been decided). Lay evidence may establish an alleged stressor may where: 1) the stressor is related to the Veteran's fear of hostile military or terrorist activity; 2) a VA psychiatrist, VA psychologist, or VA-contracted psychiatrist or psychologist, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the Veteran's symptoms are related to the claimed stressor; 3) the stressor is consistent with the places, types, and circumstances of the Veteran's service; and 4) there is no clear and convincing evidence to the contrary. See Stressor Determinations for Posttraumatic Stress Disorder, 75 Fed. Reg. 39,843, 39,852. Fear of hostile military or terrorist activity occurs where 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, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. See Stressor Determinations for Posttraumatic Stress Disorder, 75 Fed. Reg. 39,843, 39,852. Lay evidence may also establish an in-service stressor if the evidence establishes that a veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of 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. 38 C.F.R. § 3.304(f)(2) . A medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressors. Cohen v. Brown, 10 Vet. App. 128, 142 (1997); Moreau v. Brown, 9 Vet.App. 389, 395- 396 (1996). III. Analysis With respect to the first element of § 3.304(f) and Shedden, a current disability, the evidence of record indicates that the Veteran has been diagnosed with depression and anxiety. The record does not, however, indicate that the Veteran has been diagnosed with PTSD. Multiple treatment records note "rule out" PTSD as a potential diagnosis. See, e.g., a December 2004 VA treatment record. This is not a diagnosis in conformance with the DSM-IV. In light of the diagnoses of anxiety and depression, evidence of a current disability has been established and the first Shedden element has been met, however, in the absence of a valid diagnosis of PTSD, the first element of § 3.304(f) has not been met. To the extent that the Veteran contends that he has PTSD, he is not competent to provide such a diagnosis. Specifically, PTSD may not be diagnosed by its unique and readily identifiable features because special medical training as it is 'medical in nature' and not capable of lay observation, in contrast to such disorders as ringing in the ears, varicose veins, and flat feet. See Davidson, supra; Buchanan, supra; Jandreau, supra; Charles, supra. Therefore, since the Veteran, as a layperson, is not capable of diagnosing PTSD, the Board finds that his opinions regarding the nature of his psychiatric disability are not competent evidence. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998); see also Bostain v. West, 11 Vet. App. 124, 127 (1998). In addition, although clinical reports reflect diagnoses of alcohol dependence and alcohol induced mood disorder, direct-incurrence service connection may not be granted for a disability due to a veteran's willful misconduct, or for claims filed after October 31, 1990, for disability the result of his or her abuse of alcohol or drugs. 38 C.F.R. § 3.301(a) (2012). In the absence of a valid diagnosis of PTSD, the Board need not address the remaining elements of 38 C.F.R. § 3.304(f). With respect to the second Shedden element, the Veteran's service treatment records are silent for any treatment or complaints of a psychiatric disability. In a Statement received in January 2005, the Veteran alleged that his psychiatric disabilities are due to stressors that occurred while he was stationed in Okinawa, Japan. Specifically, the Veteran stated that as a result of court-martials that he had to attend due to various types of thefts, he received death threats. The Veteran also alleged that in June 1971 there was a lot of unrest on the base and there were several riots in and around the barracks. Finally, the Veteran stated that while filling in for a desk sergeant, a woman burst into the office waving a bloody kitchen knife and said she had just stabbed her husband several times. As noted, the AMC attempted to verify the Veteran's claimed stressors. In an October 2010 letter, the Department of the Air Force stated that there is no record of an investigation involving the Veteran in a riot situation or that he was on base during a riot action, or of a woman with a bloody knife, or any threats due to his investigations that led to people being part of a court martial. A response from the JSRRC noted that historical information did not document the incidents as described by the Veteran involving riots on base however, in June 1971, the "Japanese government signed a treated with the United States that authorized the reversion of Okinawa to Japan. In protest, over 100,000 people marched and rallied throughout Japan in dissatisfaction with the reversion. Many protestors resorted to violent tactics in protest." Based on the documented riots that occurred while the Veteran was stationed in Japan, the Board finds that an in-service event has occurred. The second Shedden element has therefore been met. With respect to the third Shedden element, the record does not contain any competent or credible evidence which addresses whether the currently diagnosed psychiatric disabilities are related to the riots the Veteran witnessed during service. Indeed, it was for this reason that the Board remanded this case in May 2010 and December 2011. As the Veteran failed to report for the VA examination scheduled pursuant to those Remands, there is no competent evidence of record associating the currently diagnosed psychiatric disabilities to the Veteran's military service. The Veteran was advised in the March 2011 and August 2012 supplemental statements of the case that he had failed to attend his scheduled VA examinations, and the AMC continued the denial of her claim based on the evidence of record. 38 C.F.R. § 3.655. The Veteran has not disputed that he failed to report for his examinations, provide good cause for such failures, and has not requested that an examination be rescheduled. As a result, the Board has adjudicated the claim based on the evidence in the claims file, as described above, in accordance with VA regulations. Id. To the extent that the Veteran contends that a medical relationship exists between his psychiatric disabilities and service, any such statements offered in support of the Veteran's claim do not constitute competent evidence and cannot be accepted by the Board. This is because, as noted above, the Veteran's psychiatric disabilities require medical expertise to diagnose; such disorders are not capable of lay observation in the same way that tinnitus, flat feet, and varicose veins are. Rather, they require medical training. Again, the Board notes that the Veteran's reports of symptoms are wholly competent and credible, but as there is no competent nexus evidence, service connection on this basis cannot be granted. With respect to the provisions of 38 C.F.R. § 3.303(b) relating to chronicity and continuity of symptomatology, the Veteran does not assert that he has experienced psychiatric problems since he separated from service. Indeed, in the August 2005 notice of disagreement and the May 2006 substantive appeal, the Veteran argued that "symptoms can take a very long time to surface." Indeed, the first evidence of a psychiatric disability comes from a December 2004 VA treatment record. In view of the foregoing, the Board finds that continuity of symptomatology has therefore not been demonstrated. Thus, the third Shedden element has not been met and the Veteran's claim fails on this basis. Of significance to the Board in this matter is the fact that the claims folder contains no competent evidence of a nexus between the Veteran's psychiatric disabilities and his active duty and no evidence of continuity of symptomatology. In sum, for the reasons and bases expressed above, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for an acquired psychiatric disability. The benefit sought on appeal is accordingly denied. ORDER Service connection for an acquired psychiatric disorder, to include PTSD, is denied. ____________________________________________ K. MILLIKAN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs