Citation Nr: 1309366 Decision Date: 03/19/13 Archive Date: 04/01/13 DOCKET NO. 07-11 872 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). ATTORNEY FOR THE BOARD K. Haddock, Associate Counsel INTRODUCTION The Veteran had active military service from June 1984 to May 1985, from August 1989 to October 1989, and from February 1991 to January 1992. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. This case has been previously before the Board, most recently in April 2012, at which time the issue currently before the Board was remanded for additional development. The case has now been returned to the Board for further appellate action. FINDING OF FACT PTSD has not been shown. CONCLUSION OF LAW PTSD was not incurred in or aggravated by active service. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the Veteran was mailed a letter in July 2008 advising him of what the evidence must show and of the respective duties of VA and the claimant in obtaining evidence. The July 2008 letter also provided the Veteran with appropriate notice with respect to the disability-rating and effective-date elements of his claim. Although the Veteran was not provided adequate notice until after the initial adjudication of the claim, the Board finds that there is no prejudice to the Veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that following the provision of the required notice and the completion of all indicated development the claim was readjudicated. There is no indication or reason to believe that the ultimate decision on the merits of the claim would have been different had complete VCAA notice been provided at an earlier time. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim). The Board also finds the Veteran has been afforded adequate assistance in response to his claim. The Veteran's service treatment records (STRs) and service personnel records (SPRs) are on file, VA Medical Center and private treatment notes have been obtained, and the Veteran has been afforded the appropriate VA examination. The Veteran nor has not identified any outstanding evidence, to include medical records, which could be obtained to substantiate the claim. The Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the claim. Legal Criteria Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). The U.S. Court of Appeals for Veterans Claims (Court) has held that in order to prevail on the issue of service connection on the merits, there must be medical evidence of a (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). Generally, service connection for PTSD based on an in-service stressor requires medical evidence establishing a diagnosis of the condition, credible supporting evidence that the claimed in-service stressor actually occurred, and a link established by medical evidence, between the current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304 (f). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis The Veteran has asserted that he has PTSD as a result of his service in the first Gulf War. A review of the Veteran's SPRs shows that the Veteran did in fact have active service in the Persian Gulf during the first Gulf War. Additionally, the Veteran has reported that while serving in the Persian Gulf he feared that he would die as a result of a SCUD missile attack. Therefore, the Board concedes the Veteran's in-service PTSD stressor. A review of the Veteran's STRs is negative for any treatment for or a diagnosis of PTSD while the Veteran was in active service. A review of the post-service medical evidence of record shows that the Veteran has been in receipt of treatment for various disabilities at the VA Medical Center since at least 1998. A review of the VA Medical Center treatment notes of record shows that the Veteran has a long history of substance abuse and treatment for such. The Veteran has been diagnosed with alcohol dependence, cocaine dependence, and cannabis abuse. In January 1998, the Veteran was diagnosed with depression and anxiety; however, those diagnoses were not continued. In March 2005, the Veteran was diagnosed with depression not otherwise specified (NOS) following complaints of being depressed due to financial concerns and difficulties in his relationship with his spouse. The Veteran's PTSD screen at that time was negative. There is no indication from the VA Medical Center treatment notes of record that the Veteran has ever been diagnosed with PTSD as a result of an in-service stressor in accordance with DSM IV criteria. The Veteran has been incarcerated for portions of time during the pendency of this appeal. Of record are Department of Corrections prison treatment records. A review of those records show that the Veteran was noted to have PTSD and receive mental health treatment for such while incarcerated. However, there is no record indicating that this diagnosis was made in accordance with DSM IV criteria as required or that the PTSD diagnosis was based on in-service stressors. In August 2012, the Veteran was afforded a VA examination. At that time, the VA examiner conducted a very thorough review of the Veteran's claims file and documented the Veteran's long history of mental health and substance abuse treatment in great detail. The examiner diagnosed alcohol abuse, cannabis abuse, and cocaine abuse in full remission per report. The examiner expressly stated that the Veteran did not have a diagnosis of PTSD that conformed to DSM IV criteria. In this regard, the examiner found that the Veteran's symptoms did not meet the applicable DSM IV diagnostic criteria. The examiner noted that the Veteran reported minimal PTSD symptoms that did not require the endorsement of any specific mental health disorder. The examiner further noted that the Veteran's main issues, both current and long term, were alcohol and substance abuse. The examiner noted that the Veteran had these problems prior to his active service and that he has continued to experience them to this day. The examiner further noted that the Veteran's substance abuse problems were not related to his active service. The Board notes that compensation will not be paid if a disability is the result of the person's own willful misconduct or the abuse of alcohol or drugs. 38 U.S.C.A. §§ 1110, 1131. So, service connection for the Veteran's substance abuse is not allowable by law as it has not been found to be a result of a service-connected disability. The United States Court of Appeals for Veterans Claims (Court) has held that in order for a disability to be service connected, it must be present at the time a claim for VA disability compensation is filed or during the pendency of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In this regard, as noted above, there is no competent evidence of record showing that the Veteran has PTSD. In sum, the Board has conceded the Veteran's PTSD stressor; however, there is no evidence of record indicating that the Veteran has ever been diagnosed with PTSD in accordance with the applicable DSM IV criteria. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for PTSD is not warranted. ORDER Entitlement to service connection for PTSD is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs