Citation Nr: 1306047 Decision Date: 02/21/13 Archive Date: 02/27/13 DOCKET NO. 09-15 268 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Michael James Kelley, Esq. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Patricia Veresink, Associate Counsel INTRODUCTION The Veteran had active service from July 1967 to October 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference hearing before the undersigned Board member in August 2012. A transcript of that hearing has been associated with the claims file. During the August 2012 hearing, the Veteran's representative asserted that the Veteran's psychiatric claim should be for an acquired psychiatric disability, to include body dysmorphic disorder, and not for PTSD. In Clemons v. Shinseki, the Court of Appeals for Veterans Claims (Court) held that the Board erred when it denied Mr. Clemons's claim for benefits for post-traumatic stress disorder for lack of a current diagnosis, although he had a current diagnosis of a mental disorder other than post-traumatic stress disorder, because "the fact that the appellant may be wrong about the nature of his condition does not relieve the Secretary of his duty to properly adjudicate the claim." 23 Vet. App. 1, 6 (2009). In this instance however, there record does reflect a diagnosis of PTSD, and the Veteran has previously been denied service connection for an acquired psychiatric disability. Most recently, in July 2007 the claim to reopen was denied based on a lack of new and material evidence. The Veteran disagreed with that denial. However, in June 2008 the Veteran withdrew his appeal on the psychiatric disability claim, stating that he was instead filing a claim for service connection for PTSD. The August 2008 rating decision denied only PTSD, and the Veteran's notice of disagreement listed only PTSD. The statement of the case in April 2009 only listed PTSD, and the substantive appeal simply checked the box that all issues listed on the statement of the case were being appealed. A March 2010 supplemental statement of the case likewise considered only the PTSD issue. A September 2010 supplemental statement of the case is the first time the issue on appeal was inappropriately expanded. Notwithstanding the fact that the in July 2011 the Board specifically noted the only issue before the Board was PTSD, the RO erroneously listed the issue as acquired psychiatric disorder to include PTSD. A supplemental statement of the case cannot be used to introduce a new issue. 38 C.F.R. § 19.31. As a claim for an acquired psychiatric disability was clearly distinguished by the Veteran at the time of his claim, the rating decision, notice of disagreement, and statement of the case, the Board finds that the only issue before the Board is entitlement to service connection for PTSD. The Board further notes that the Veteran's attorney filed a request to reopen the claim for service connection for an acquired mental disorder in May 2011. The RO sent VCAA notice including that issue in July 2011 but did not adjudicate that claim in the April 2012 rating decision in which the other issues in the May 2011 claim were adjudicated. Accordingly, as the request to reopen the claim for service connection for an acquired psychiatric disability has not been addressed by a rating decision addressing the matter, the matter is REFFERED to the RO for appropriate adjudication of that still-pending claim. FINDINGS OF FACT 1. There is no competent and credible evidence corroborating the occurrence of the Veteran's alleged in-service stressor. 2. The most probative evidence indicates that the Veteran does not have a credible or corroborated in-service stressor upon which the diagnosis of PTSD can be based. CONCLUSION OF LAW The criteria for establishing service connection for PTSD have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2011). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In this case, in a July 2008 letter, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claim, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letter also advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran including service treatment records, service personnel records, post service treatment records, VA examination reports, and hearing testimony. The Board also notes that actions requested in the prior remand have been undertaken. VA treatment records were obtained and Vet Center records were requested. Additionally, a VA examination was obtained. The Board notes that records from the Vet Center were not received. However, as the Board concludes below that the Veteran does not have a credible in-service stressor, a diagnosis of PTSD due to service cannot be supported, and the failure to obtain these records is not prejudicial. Moreover, the Board notes the letter discussing the treatment from that Vet Center notes that the Veteran did not have a stressor to support the diagnosis. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran was an active participant in the claims process by submitting evidence and argument. Therefore, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374; Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Service connection for PTSD requires a medical diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). The evidence required to support the occurrence of an in-service stressor varies depending on whether the appellant was engaged in combat with the enemy. 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 such veteran's service, his lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(f) (2012). Where the record does not establish that a veteran engaged in combat with the enemy, his assertions of in-service stressors, standing alone, cannot provide evidence to establish an event claimed as a stressor occurred. Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). Rather, he must provide "credible supporting evidence from any source" that the event alleged as the stressor in service occurred. Cohen v. Brown, 10 Vet. App. 128, 147 (1997). However, effective July 13, 2010, VA amended its PTSD regulations by liberalizing, in certain circumstances, the evidentiary standards for establishing the occurrence of an in-service stressor for non-combat veterans. See 75 Fed. Reg. 39,843-39,852 (effective July 13, 2010). Essentially, the amended version of 38 C.F.R. § 3.304(f)(3) eliminates the need for stressor corroboration in circumstances in which the claimed in-service stressor is related to "fear of hostile military or terrorist activity." As such is not alleged here, the revised provisions do not affect the outcome of this claim. The Board has reviewed all the evidence in the appellant's claims file and electronic Virtual VA 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 appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the 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). Upon review of the record, the Board finds that the claim for service connection for PTSD must fail because an essential criterion for establishing service connection - credible evidence of an in-service stressor - has not been met. See 38 C.F.R. § 3.304(f). Initially, the Board notes that the appellant does not contend that his PTSD is the result of a combat-related incident or injury. During the course of the claim, the Veteran has reported several stressors. Specifically, stressors have been reported as a motor scooter accident at age 16, testicular surgery at age 10, and being drafted. He stated that because his right testicle was "mutilated" during surgery as a child it affected his development physically and psychologically. He stated that during basic training he was "traumatized due to his physical deformity of being around others, especially showers, etc." The Veteran had also reported to a treatment provider that his father was a butcher, whose white apron was often times stained blood-red when he came home from work. The Veteran alleged that in boot camp he was instructed to exclaim "kill, kill, kill" and had to learn to use weapons with covers over his eyes which was traumatizing to him. The Board notes that the record reveals the Veteran's parents divorced when he was three years old, that his father was a retired worker at Swift Company and would come from Connecticut to visit them on Sundays, which raises a question as to when the Veteran would have seen his father in his work apron. Regardless, the Board finds the Veteran is not a reliable historian, and because of such, his alleged stressors related to service are not credible. In this case, the record is replete with clinicians noting the Veteran is a poor or unreliable historian, has a significant delusional disorder, and that it was unclear whether his stressor for PTSD concerning his reported genital mutilation as a child was the result of delusions or was real. Indeed, a May 2011 VA treatment report noted that with respect to PTSD, the psychiatrist wondered whether it was a delusional trauma from childhood or real or both. The question of malingering was also raised in several treatment reports, and the Veteran's statements during those treatments reflect his intent for monetary gain. Even as early as 1975, it was noted that the Veteran was manipulative and was believed to be feigning symptoms to appear worse than he actually was. In this regard, during a February to April 1975 VA hospital admission, it was noted that although he vividly described auditory hallucinations, ideas of reference, and a feeling that people were ganging up on him, when studied with psychological evaluation and observed clinically, it became apparent that the Veteran had learned how to manipulate the situations so as to feign illness. On psychological testing, he showed a normal range of intelligence with only mild inefficiency and abstract functioning. Short term recall seemed to be impaired but immediate memory was within normal limits. The results of the tests were not consistent with the claimed gross confusion and disorientation. It was noted that there was a feeling on the part of people who have observed him, that he was feigning symptoms frequently. The diagnosis was schizophrenia, chronic undifferentiated type, versus organic brain syndrome with psychotic reaction secondary to excess alcohol and drugs. A November 2007 VA treatment report notes the Veteran's preoccupation with the perceived "butchery of his genitals" when he was 10, for which he blames VA. It was noted that he seemed convinced that VA should have know about his condition before drafting him and that VA is responsible for his "not properly developing into a man." He stated it was the military's fault for drafting him when he was "coming into self-awareness as a teenager" and believes that his development (sexually, endocrinogically, psychologically) was "interrupted by being drafted" and that he holds them responsible. He was diagnosed with a delusional disorder, among other conditions. These records also noted that his reliability was questionable due to his mental illness and possible malingering for secondary gain of disability and service connection. A December 2007 primary care note diagnosed delusional disorder and noted that "[Patient] adamant about getting a 100% [service connected] disability claim that his hormone levels had been permanently messed up due to his 3 months of service." A January 2008 VA treatment note indicates the Veteran was pursing Social Security disability and a PTSD claim with VA because he wants to "take it easy and retire." Moreover, there is no mention in treatment records from 1968 to 1975 of any harassment or adjustment problems relating to his military service. The only elaboration concerning his military service pertained to a mention of being discharged due to a leg fracture. At no time during these psychiatric hospitalizations did the Veteran reference any harassment during service or any complaint concerning his being wrongfully drafted. His claim for PTSD centers on the impact of what he terms genital mutilation and how that surgery impacted him in basic training, leading to his PTSD. The record confirms that he underwent surgery to repair a right hydrocele and left undescended testicle in 1959. His service entrance examination noted a right hernia scar but no other physical abnormalities related to his genitourinary system, nor were any noted on separation examination. During hospitalization in December 1968 for drug abuse, he noted he had a girlfriend and that his sexual adjustment has been good. He further noted that he was attending school when he first took drugs, and took them because he was curious, not for problems. It was noted that 11/2 years ago he started to take LSD as an experiment. At no point during this initial hospitalization did the Veteran mention any incidents concerning his military service or concern about his genital area. VA general medical examination from October 1971 noted a normal genitourinary evaluation. Likewise, private hospital records from 1968 to 1974 do not mention any military stressors as a precipitating factor for the Veteran's mental illness. The Veteran's reliability was further addressed by a VA examiner in November 2011. She stated that the Veteran has a longstanding history of impaired reality testing, disorganized thinking and bizarre delusions, as well as a lengthy history of substance dependence (i.e., heroin, cocaine, amphetamine, LSD, benzodiazapene) during various periods of his life. She noted that the Veteran's descriptions of his symptoms were vague and that he was a poor historian. She further noted the Veteran's medical chart is replete with inconsistencies in his self-report regarding various experiences and events during his treatment episodes beginning in 1968 to the present. She stated these inconsistencies appear to be more of a reflection of years of debilitating symptoms that have, at times, impaired the Veteran's memory and sense of reality rather than evidence of outright malingering. The examiner noted that concerning the question as to whether the Veteran has PTSD related to events that occurred during his military service, there was no direct evidence in support of a fear of being ridiculed for having "mutilated" genitalia while in the military. The Veteran reported feeling that he should never have been drafted in the military because of his "mutilated genitalia". However, references to his testicle surgery and the associated delusions do not appear until the Veteran began treatment at the Brockton VA Medical Center in the last 10 years and that there was no evidence of his body dysmorphic disorder before the last 10 years. In deciding this claim, the Board has carefully considered the Veteran's lay assertions as to his service experience. It is the duty of the Board to analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir.1996) (table); Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). For the reasons set forth above, the Board finds that the Veteran's contentions are not credible. Evidence close in time to the Veteran's three month period of service and in the 7 years thereafter, reveals that the Veteran expressed no concerns regarding bad experiences in service, nor did he espouse any concerns regarding his genital area. Indeed, he was noted to have a good sexual adjustment. As noted by the 2011 VA examiner, the Veteran's preoccupation with his childhood surgery and its impact on his body image was not evident until the 1990s. It is after that time that the Veteran has begun espousing to clinicians that his military experience was negatively impacted due to his perceived genital mutilation, and these clinicians have in turn accepted the Veteran's statements as factual when rendering diagnoses of PTSD. However, the Board finds the evidence close in time to service, wherein the Veteran had no complaints concerning military service, his childhood surgery, or his genital area to be significantly more credible than the recollections of the Veteran being reported approximately 40 years after his discharge from service. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-1337 (2006) (the significant time delay between the affiants' observations and the date on which the statements were written and conflicting statements of the veteran are factors that the Board can consider and weigh against a veteran's lay evidence). As noted by the 2011 VA examiner, the numerous inconsistencies in the Veteran's self-report regarding various experiences and events during his treatment episodes beginning in 1968 to the present appear to be more of a reflection of years of debilitating psychiatric symptoms that have, at times, impaired the Veteran's memory and sense of reality. For the reasons set forth above, the Board finds that the information provided by the Veteran concerning his military experience is simply not reliable or credible, when considered in light of all of the evidence of record. Moreover, while various clinicians have diagnosed PTSD, such diagnoses were based on the history provided by the Veteran, which the Board has found to lack credibility. As such, diagnoses based on that history have no probative value. See Coburn v. Nicholson, 19 Vet. App. 427, 432 (2006) (holding that reliance on a veteran's statement renders a medical report incredible only if the Board rejects the statements of the Veteran); see also Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that "an opinion based upon an inaccurate factual premise has no probative value"). Absent credible evidence of an in-service stressor, service connection may not be awarded for PTSD as he has failed to meet an essential criterion for establishing service connection - credible supporting evidence that an in-service stressor occurred. See Arzio v. Shinseki, 602 F.3d 1343, 1346 (Fed. Cir. 2010) (stating that 3.304(f) makes clear that credible evidence of an in-service stressor is a mandatory or compulsory element in any claim for disability compensation for PTSD). Discussion of the remaining criteria for service connection for PTSD set forth in the governing regulation is therefore unnecessary. Accordingly, the Board concludes that the preponderance of the competent, credible, and probative evidence is against the claim, and service connection for PTSD is denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Entitlement to service connection for PTSD is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs