Citation Nr: 1318204 Decision Date: 06/05/13 Archive Date: 06/11/13 DOCKET NO. 09-18 362 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Medical and Regional Office Center in Fargo, North Dakota THE ISSUES 1. Entitlement to service connection for residuals of a left arm muscle injury. 2. Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Turner, Counsel INTRODUCTION The Veteran served on active duty for training from August 1999 to January 2000 and on active duty from July 2003 to May 2004 and October 2005 to August 2007. This matter comes before the Board of Veterans' Appeals (Board) on an appeal from a July 2008 rating decision issued by the Regional Office (RO) in Fargo, North Dakota. The Board notes that the July 2008 rating decision granted service connection for an anxiety disorder with mixed anxiety and depressed mood, rated 30 percent disabling. While the Board acknowledges the Veteran's right to continue to pursue his appeal for service connection for PTSD, he is advised that he is already being compensated for all of his psychiatric symptoms under his rating for anxiety disorder. FINDINGS OF FACT 1. It is at least as likely as not that the Veteran has residuals of a left arm muscle injury that is related to his military service. 2. The evidence does not show that the Veteran currently has PTSD or that he had PTSD related to his military service at any time during the pendency of this appeal. CONCLUSIONS OF LAW 1. Residuals of a left arm muscle injury were incurred in service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). 2. PTSD was not incurred in, or aggravated by, service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The Veterans Claims and Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants with substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. § 3.102, 3.156(a), 3.159. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, that is necessary to substantiate his or her claim. 38 U.S.C.A. § 5103(a), 38 C.F.R § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183, 186-187 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. The Board notes that 38 C.F.R. § 3.159 was revised in part, effective May 30, 2008. See 73 Fed. Reg. 23,353-23,356. The third sentence of 38 C.F.R. § 3.159(b)(1), which stated that "VA will also request that the claimant provide any evidence in the claimant's possession that pertains to the claim," was removed. This amendment applies to all applications pending on, or filed after, the regulation's effective date. VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Pelegrini v. Principi, 18 Vet. App. 112, 115 (2004). However, the VCAA notice requirements may be satisfied notwithstanding errors in the timing or content of the notice if such errors are not prejudicial to the claimant. Id at 121. Further, a defect in the timing of the notice may be cured by sending proper notice prior to a re-adjudication of the claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333-1334 (Fed. Cir. 2006). The VA General Counsel issued a precedential opinion interpreting Pelegrini as requiring the Board to ensure that proper notice is provided unless it makes findings regarding the completeness of the record or other facts that would permit the conclusion that the notice error was harmless. See VAOGCPREC 7-2004. The United States Court of Appeals for the Federal Circuit reaffirmed the importance of proper VCAA notice in Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Mayfield and its progeny instruct that a comprehensive VCAA letter, as opposed to a patchwork of other post-decisional documents, is required to meet the VCAA's notification requirements. Id at 1320. However, VCAA notification does not require a pre-adjudicatory analysis of the evidence already contained in the record. See, e.g. Mayfield v. Nicholson, 20 Vet. App. 537, 541 (2006). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sum nom Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice requirements are applicable to all five elements of a service connection claim. Thus, the Veteran must be notified that a disability rating and effective date for the award of benefits will be assigned if service connection for a claimed disability is awarded. Id at 486. In this case, the Veteran was sent a letter in February 2008, prior to the rating decision at issue, which explained how VA could assist him with obtaining evidence in support of his claims. The February 2008 letter also explained what the evidence needed to show in order to establish service connection for a claimed disability as well as how VA assigns ratings and effective dates for service connected disabilities. He was sent another letter with this information in May 2008, which also was before the rating decision at issue. VA also must make reasonable efforts to assist the claimant with obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the current appeal, VA has of record evidence including service treatment records, VA treatment records, and the written contentions of the Veteran. The Veteran has not identified any other information in support of his claim. The Veteran was afforded a VA psychiatric examination in March 2008 and a VA general medical examination in March 2008. As previously noted, the Veteran was granted service connection for an anxiety disorder based upon the findings of the March 2008 psychiatric examination and as such it adequately addressed the nature and etiology of any existing psychiatric disorder, including PTSD, with careful attention given to the diagnostic criteria therefore. Service connection Service connection may be granted for a disability resulting from disease or injury that was incurred in, or aggravated by, service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for a disease diagnosed after discharge if all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The requirement that a current disability exist is satisfied if the claimant had a disability at the time his claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). A. Left arm muscle injury The Veteran contends that he has residuals of a left arm muscle injury that occurred during his military service. At his March 2008 general medical evaluation, the Veteran reported that a personnel hatch of a Bradley fighting vehicle fell closed, landing on the midportion of his left forearm. This injury resulted in a muscle hematoma and no fractures were found. Currently, he had some muscle deformity of the left forearm and recurrent aching in the area. Service treatment records reflect that in December 2006 a hatch of an M2 Bradley dropped onto the Veteran's left forearm, causing injury to the left forearm. The Veteran was diagnosed with a hematoma of the left forearm and prescribed a compression wrap, wrist splint to limit motion, elevation and rest, and light duty for seven days. The March 2008 examination report indicates that examination of the left forearm revealed a 2cm by 8cm mildly depressed area of muscle that is nontender and not indurated and is located in the midportion of the dorsal aspect of the forearm. There was also a 2 cm by 4cm area of mild muscle herniation that is located at the superior edge of this depression area and is observed with the Veteran tensing his left forearm muscles. There was no joint functioning affected by the left forearm condition. There were no symptoms involving the elbow. Motor testing was full. The fingers moved freely and the Veteran had intact capillary refill and intact light touch. The examiner diagnosed left forearm muscle hematoma resolved with residual mild muscle depression and mild muscle herniation. The evidence shows that it is at least as likely as not that the Veteran has a left forearm muscle injury that is related to his military service. Trauma to the left forearm in service is shown with a diagnosis of muscle hematoma. Current residuals include a mild depression in the area and mild muscle herniation, which the examiner indicated were residuals of the in service hematoma. While it may be that there is little or no impairment of function as a result of these residuals, a matter upon which the Board makes no opinion, this is a matter for consideration when assigning a rating and not a basis to deny service connection. Service connection for residuals of a left forearm muscle injury is granted. B. PTSD The Veteran contends that he has PTSD as a result of his military service. The Veteran had service in the Persian Gulf region and has the Combat Infantry Badge. A December 2007 post-deployment health report indicated that the Veteran had "PTSD symptoms since deployment." Service connection for PTSD requires medical evidence diagnosing the disorder in accordance with 38 CFR § 4.125(a), medical evidence linking current symptoms to an in service stressor, and, in some circumstances, credible supporting evidence that the claimed in service stressor actually occurred. 38 C.F.R. § 3.304(f). Prior to July 2010, the evidence necessary to establish that an in service stressor actually occurred depended upon whether the Veteran "engaged in combat with the enemy." 38 C.F.R. § 3.304(f); See also Hayes v. Brown, 5 Vet. App. 60, 66-67 (1993). If the evidence showed that the Veteran engaged in combat with the enemy or was a prisoner of war (POW) and the claimed stressor was related to those experiences, 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, his lay testimony alone was sufficient to establish the occurrence of the claimed in service stressor. If, however, the Veteran did not engage in combat with the enemy and was not a POW, or the claimed stressor was unrelated to the Veteran's combat or POW experiences, some evidence corroborating the Veteran's lay statements is required in order to establish that an in service stressor actually occurred. 38 C.F.R. 3.304(f)(2) (2009). The only other exception to the requirement for verification of an in-service stressor in effect at that time involved cases when the Veteran was diagnosed with PTSD during service and the claimed stressor is related to that service. In such cases, the Veteran's lay testimony alone was sufficient to establish the occurrence of the claimed stressor, absent clear and convincing evidence to the contrary, 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)(1) (2009). However, in July 2010 the exceptions to the stressor verification requirement were changed. The current 38 C.F.R. § 3.304(f)(3) states: If a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and A VA psychiatrist or psychologist or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support the diagnosis of [PTSD] and that the Veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the in service stressor. For purposes of this paragraph, 'fear of 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, 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. Id. At his VA examination in March 2008, the Veteran related that he was involved in house raids in Iraq and had generalized worry about what would happen in the area where he was located. He related that he lost his best friends during a patrol that was not in their usual area. His friend was in a Humvee between two Bradley fighting vehicles when there was an explosion. The Veteran was in the vehicle directly behind his friend's vehicle at that time. He watched other soldiers try to rescue his friend but they could not get him out of the vehicle due to the fire. The Veteran believed that his friend was already dead as a result of the explosion at that time. When they were leaving the area, there was incoming artillery which landed close by. Given that the Veteran's stressor is related to hostile military or terrorist activity and also considering that he received the Combat Infantry Badge, his stressor is conceded. However, the evidence does not show that the Veteran developed PTSD as a result of this incident or any other military experience. Rather, the evidence shows that he developed an anxiety disorder with mixed anxiety and depressed mood as a result of his service and for which he is presently service connected. After reviewing the claims file and interviewing the Veteran, the examining psychologist considered all of the diagnostic criteria for PTSD and determined that certain criteria were not met. With regard to criterion A, exposure to a stressor, the examiner assessed that the Veteran's claimed stressors met this criterion, although he was unable to verify whether the stressors actually occurred. With regard to the second criterion, reexperiencing the event, the examiner noted that the Veteran had intrusive memories during the day and dreams from which he awoke sweating, which suggested the presence of nightmares although the Veteran did not remember them. Thus, criterion B was also met. Criterion C involves a persistent avoidance of stimuli related to the traumatic event or a general numbing of emotions. The Veteran denied avoiding people, places, or situations that reminded him of his military experiences. He watched news about the war once in a while, and denied that this was a change from his previous behavior. He enjoyed watching war movies and the military channel on television. He had no problems with fireworks or pyrotechnics although unexpected noises sometimes disrupted him. Being in crowds caused some irritation, but he had no difficulty unless people were bumping into him. He relayed that he tries to keep an eye on Arabic people but noted that he watched everyone in crowds. The Veteran had friends and did not look for new friends, denying that this was a change from his former behavior. He denied any problems with family members. The Veteran did not describe any pattern of avoiding stimuli or any persistent numbing of emotions. Thus, criterion C was not met. Criterion D involves increased arousal. The Veteran reported an increase in hypervigilance. Loud noises in the workplace startle him. This is a very brief reaction which brings back memories and he is able to continue working. He denied having problems at work or with supervisors or other employees. He falls asleep without difficulty until family members wake him up. If he stays up late with his children he does not feel rested in the morning, but otherwise he had adequate energy. The Veteran related that his ability to concentrate was unimpaired. He felt that temperamentally he had become mellower. He now found that little things did not bother him the way they used to. While the Veteran described a minor increase in hypervigilance, he otherwise did not describe a persistent increase in arousal. This criterion was therefore not met. In order to diagnose PTSD, the patient's symptoms also must persist for more than one month and cause clinically significant distress or impairment in social, vocational, or other aspects of functioning. The Veteran experienced criterion B over time, but since he did not meet criteria C or D, the temporal requirement was only partially met. The Veteran denied significant distress or impairment in social, family, or vocational functioning as a result of his symptoms. The examiner noted that the Veteran's symptoms did not appear to reach to the level necessary for a PTSD diagnosis. A coexisting pattern of depressive symptoms was identified but the overall criteria for a diagnosis of PTSD were not met. The examiner instead opined that the Veteran developed an anxiety disorder with mixed anxiety and depression as a result of his military service. As previously noted, the Veteran is already service connected for this. There are no other medical records indicating that the Veteran was diagnosed with PTSD. Although the Veteran was noted by his primary care physician to have screened positive for PTSD at a January 2008 appointment, this was not a definitive diagnosis of PTSD and there is no indication that a comprehensive psychiatric examination was performed at that time. Moreover, a primary care physician's opinion rendered after a brief general medical examination would likely carry less weight than that of a psychologist who had fully evaluated the Veteran, since psychologists ordinarily have more expertise related to the diagnosis and treatment of mental disorders than general practice physicians. The Board acknowledges the contention of the Veteran's representative that the VA examination was flawed because the examiner indicated that the Veteran did not have any combat related awards when he in fact had been awarded the Combat Infantry Badge. However, the evidence affirmatively shows that this did not affect the examiner's diagnosis. For diagnostic purposes, the examiner accepted the Veteran's report of his stressor and assessed that criterion A for PTSD was met, although he could not verify that the Veteran's story was true. The Veteran did not meet the avoidance or increased arousal criteria necessary for a diagnosis of PTSD. These factors relate to current functioning and would not be impacted by the Veteran's receipt of a decoration. The Board has considered the Veteran's pleadings in this matter. Even if we assume that the appellant is competent to report that he has received a diagnosis of PTSD, his evidence is far less probative, credible and detailed than that of the medical professional detailed above. We find that a detailed opinion from a trained medical professional as to the correct diagnosis is far more probative than a lay opinion. The weight of the evidence shows that the Veteran does not have PTSD. Rather, his symptoms are attributable to an anxiety disorder with mixed anxiety and depression, for which he is already service connected. The benefit of the doubt rule does not apply since the evidence is not in equipoise. ORDER Service connection for residuals of a left forearm muscle injury is granted. Service connection for PTSD is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs