Citation Nr: 1322389 Decision Date: 07/12/13 Archive Date: 07/18/13 DOCKET NO. 06-07 313A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for post traumatic stress disorder (PTSD). 2. Entitlement to service connection for an acquired psychiatric disability other than PTSD, to include as secondary to a service-connected disability. REPRESENTATION The Veteran is represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Pflugner, Counsel INTRODUCTION The Veteran served on active duty from February 1959 to September 1962. This case comes to the Board of Veterans' Appeals (Board) on appeal from a November 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office in Oakland, California (RO). The issue of entitlement to service connection for an acquired psychiatric disability other than posttraumatic stress disorder (PTSD), to include as secondary to a service-connected disability, will be address in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center in Washington, DC. VA will notify the Veteran if further action is required. FINDING OF FACT The evidence of record does not show a diagnosis of PTSD based on an inservice stressor. CONCLUSION OF LAW PTSD was not incurred in active military service. 38 U.S.C.A. §§ 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304(f) (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from VA must inform the veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the veteran is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). 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, including: (1) veteran status; (2) existence of a disability; (3) a connection between the appellant's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. Prior to the final adjudication of the Veteran's claim of entitlement to service connection for PTSD, the RO's August 2010 letter to the Veteran satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (noting that a VCAA defect may be cured by issuance of a fully compliant notification followed by a re-adjudication of the claim); see also Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The Veteran's claim was then readjudicated in April 2012 and March 2013 supplemental statements of the case. The purpose behind the notice requirement has been satisfied because the Veteran has been afforded ample and meaningful opportunities to participate effectively in the processing of his claim, including the opportunity to present pertinent evidence. As such, the Board finds that the content requirements of the notice VA is to provide have been met and no further development is required regarding the duty to notify. See Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The Board also finds that the duty to assist the Veteran has also been satisfied in this case. The RO obtained, or exhausted efforts to obtain, the Veteran's service treatment and personnel records, his Social Security Administration (SSA) records, as well as his identified VA and private treatment records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Moreover, there is no indication in the record that additional evidence relevant to the issue being decided herein is available and not part of the record. See Pelegrini, 18 Vet. App. at 120. Additionally, during the pendency this appeal, the Veteran was provided a VA examination in January 2012, with an April 2012 addendum, in order to ascertain whether his PTSD was etiologically related to his active duty service. The VA examiner reviewed the Veteran's claims file, service and post-service treatment records, the Veteran's claimed stressor, and administered a thorough clinical examination, all of which allowed for a fully-informed evaluation of the salient etiological questions presented by the Veteran's claim. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). Historically, the Veteran served on active duty from February 1959 to September 1962. In May 2001, the Veteran submitted a claim of entitlement to service connection for PTSD, which was denied in a November 2003 rating decision. Thereafter, the Veteran perfected an appeal to the Board. In August 2010 and in July 2012, the Board remanded the Veteran's claim for further development. In sum, with respect to the Veteran's PTSD claim, the Board directed the RO to (1) provide the Veteran with fully compliant notice; (2); request that the Veteran submit or identify any additional relevant evidence; (3) attempt to obtain records associated with inservice treatment the Veteran received at the Sierra Army Depot hospital or on-base clinic from the National Personnel Records Center or other appropriate facility; (4) inquire as to whether the Veteran was ever in receipt of Workman's Compensation and, if so, attempt to obtain the documentation upon which his claim was based; and (5) attempt to obtain the documentation associated with the Veteran's application for disability benefits from the Social Security Administration (SSA). Based on a review of the Veteran's claim file, the Board finds that the RO substantially complied with the Board's remand directives listed above. The RO provided the Veteran with full compliant notice in August 2010, at which time he was requested to submit or identify any relevant evidence not already associated with the claims file, and was asked if he was ever in receipt of Workman's Compensation. The RO also contacted the Sierra Army Depot in order to attempt to obtain the Veteran's records; a negative reply was received. Further, SSA indicated that the documentation associated with the Veteran's application for disability benefits had been destroyed. The RO issued memoranda indicated that the Veteran's SSA records and records from the Sierra Army Depot hospital and/or on-base clinic were unavailable and that further attempts to obtain them would be futile. Based on the above, the Board finds that a remand for corrective action is not warranted. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As such, the Board will address the merits of the Veteran's PTSD claim herein. Generally, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); see Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). Additionally, service connection for PTSD requires (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms and an inservice stressor; and (3) credible supporting evidence that the claimed inservice stressor occurred. See 38 C.F.R. § 3.304(f). A diagnosis of a mental disorder, including PTSD, must conform to the criteria of Diagnostic and Statistical Manual of Mental Disorders (4th ed.) (DSM-IV). 38 C.F.R. § 4.125. Preliminarily, the Board finds that the evidence of record clearly demonstrated a current diagnosis of PTSD that conforms to the criteria of the DSM-IV. Id. As such, the salient issue with respect to the Veteran's claim is whether his current PTSD is etiologically associated with an inservice stressor. Throughout the pendency of this appeal, the Veteran asserted that his current PTSD was due to a single inservice stressor. Specifically, the Veteran claimed that, sometime in November or December 1959 (alternatively claimed to have happened in January 1961), he was held hostage at gun point by a fellow service member. The Veteran stated that the fellow service member brandished a .45-calibur pistol and was upset about how the Americans mistreated the Italians during World War II. During the course of this appeal, VA amended its regulations governing service connection for PTSD, effective July 13, 2010, by liberalizing, in certain circumstances, the evidentiary standard for establishing the required inservice stressor. Specifically, the final regulation includes that 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 a 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 claimed in-service stressor. 38 C.F.R. § 3.304(f)(3). The United States Court of Appeals for the Federal Circuit (Federal Circuit) recently provided additional guidance as to the applicability of above-cited regulation as amended July 13, 2010. Specifically, the Federal Circuit held that 38 C.F.R. § 3.304(f)(3) can apply only if a veteran's claimed inservice PTSD stressor relates to an event or circumstance that a veteran experienced, witnessed, or was confronted with and that was perpetrated by a member of an enemy military or by a terrorist. Therefore, that regulation does not apply where a veteran alleges an inservice assault by a fellow service member. Hall v. Shinseki, ---F. 3d ---, 2013 WL 2450628 (C.A. Fed.). Consequently, the Board finds that 38 C.F.R. § 3.304(f)(3), as amended July 13, 2010, is not applicable to the Veteran's claimed inservice stressor. The United States Court of Appeals for Veterans Claims has held that: [w]here it is determined, through recognized military citations or other supportive evidence, that the veteran was engaged in combat with the enemy and the claimed stressors are related to such combat, the veteran's lay testimony regarding claimed stressors must be accepted as conclusive as to their actual occurrence and no further development for corroborative evidence will be required, provided that the veteran's testimony is found to be 'satisfactory,' e.g., credible, and 'consistent with the circumstances, conditions, or hardships of [combat] service.' Zarycki v. Brown, 6 Vet. App. 91, 98 (1993); see also 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304. However, the Veteran did not assert and the evidence of record was not otherwise supportive of finding that he engaged in combat during his military service. Generally, if a veteran did not engage in combat with the enemy or if the claimed stressor is not related to combat, then the veteran's testimony alone is not sufficient to establish the occurrence of the claimed stressor, and his testimony must be corroborated by credible supporting evidence. See Cohen v. Brown, 10 Vet. App. 128, 134 (1997); ("Anecdotal incidents, although they may be true, are not researchable. In order to be researched, incidents must be reported and documented."); see also M21- 1MR, Part IV.ii.1.D.15.a (attempt at corroboration not required where stressors are not capable of being documented), and 14.d. (noting that appellants must provide, at a minimum, a stressor that can be documented); Moreau v. Brown, 9 Vet. App. 389 (1996); Dizoglio v. Brown, 9 Vet. App. 163 (1996). Further, service department records must support, and not contradict, a veteran's testimony regarding non-combat stressors. Doran v. Brown, 6 Vet. App. 283 (1994). Accordingly, the Veteran's assertion that he was held hostage at gun point sometime in November or December 1959 or January 1961 must be corroborated by credible supporting evidence and not contradicted by service department records. In attempting to verify the Veteran's claimed inservice stressor, the RO contacted the U.S. Army Crime Records Center. In October 2009, a negative response was received from this facility, wherein it was also indicated that it was their record retention policy to maintain documentation for 40 years. Thereafter all documentation was destroyed. As such, should there have been any records associated with the Veteran's allegedly being held hostage, they would have been destroyed and, thus, unavailable for review. The RO was, however, able to obtain the Veteran's service treatment and personnel records. The Veteran's assertion that he was held hostage at gun point during his active duty service was not corroborated by his service treatment records, service personnel records, or any other service documentation. Indeed, the Veteran underwent psychiatric evaluations in both January 1960 and July 1962, as was demonstrated by his service personnel records. Neither of the resulting reports showed that the Veteran discussed being held hostage or the psychiatric impact thereof. The diagnosis as a result of both of the psychiatric evaluations was schizoid personality disorder that existed prior to his active duty service. The Veteran was eventually discharged from active duty service due to unsuitability due to his pre-existing schizoid personality disorder. Significantly, during a January 2012 VA examination, the Veteran reported that he was bothered a lot by the alleged hostage incident and that he thought about it all the time during the remaining portion of his military service and after. The January 2012 VA examiner reviewed both the January 1960 and July 1962 psychiatric evaluation reports. The examiner then opined as follows: If [the Veteran's assertions] were true I would have expected him to mention it to the psychiatrist in 1960 and agin [sic] in 1962 when he was evaluated by the Army. There was no mention of any hostage situation, near death incident, or traumatic event that were pre-occupying his mind in the service. Also it was not mentioned in this claims for care or compensation later in 1960's when he filed for back, hay fever, and hearing conditions. It was also not mentioned in any of the Counseling records or medical records that I reviewed in his claims file up to the 2001 VA interview. I think that it is less likely than not that the hostage situation took place with [the Veteran] or that it caused a service connected PTSD condition. It is more likely than not that he had PTSD from the severe beating he had in or around 1992 and he seems not to have worked since then. Beyond the January 1960 and July 1962 psychiatric evaluation reports, the Veteran's personnel records did not include any reference to a hostage situation. Further, the Veteran's service treatment records, dated in and after November 1959, did not include any complaints of or treatment for PTSD, a psychiatric disability, symptoms thereof, or mention of the alleged hostage incident. The Veteran first asserted that he was held hostage during his active duty service decades after his active duty discharge. Curry v. Brown, 7 Vet. App. 59, 68 (1994) (holding that contemporaneous evidence has greater probative value than history as reported by a veteran). Based on the above, the Board finds that the Veteran's assertions that he was held hostage at gun point by a fellow service member in November or December 1959 or, alternatively January 1961, are not credible. Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (noting that the credibility of statements may be impeached by inconsistent statements and consistency with other evidence). Regardless of the credibility assigned to his assertions, the Veteran's assertions alone are insufficient to establish that the claimed non-combat stressor occurred. Cohen, 10 Vet. App. at 134. The record is otherwise negative for credible evidence that serves to verify or corroborate the occurrence of the Veteran's alleged stressor. Pursuant to VA regulations, the record must contain credible supporting evidence that the claimed inservice stressor occurred. 38 C.F.R. § 3.304(f). In this case, there is no such credible supporting evidence concerning the Veteran's alleged stressor. Therefore, in the absence of credible evidence corroborating the Veteran's statements regarding his inservice stressor, the Board cannot conclude that the requirements of 38 C.F.R. § 3.304(f) have been met. Accordingly, the Board finds that the preponderance of the evidence is against service connection for PTSD and, thus, service connection is not warranted. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for PTSD is denied. REMAND Consequent to his May 2001 claim, the Veteran was provided a VA examination in January 2012. As a result of this examination, the examiner rendered a diagnosis of major depressive disorder. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). In an April 2012 addendum, the examiner opined that the Veteran's major depressive disorder was not related to his military service, but that it was "probably related to his multiple medical problems and his chronic pain problems that have occurred since he left the Army." In an October 2011 rating decision, service connection was granted for lumbar spine arthritis, a cervical strain, and bilateral lower extremity radiculopathy. The evidence also demonstrated that the Veteran reported sustaining significant injuries as a result of an assault sometime in 1992. However, the January 2012 VA examiner did not specify the disabilities related to the Veteran's "chronic pain problems" that were associated with his major depressive disorder. For this reason, the Board finds that the January 2012 VA examination is inadequate for purposes of adjudicating the Veteran's above-captioned claim, even with consideration of the April 2012 addendum. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (finding that the articulated reasoning enables the Board to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion). Once VA undertakes the effort to provide an examination, it must provide an adequate one or, at a minimum, notify the veteran why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Consequently, the Board finds that a remand is required in order to obtain a supplemental opinion from the January 2012 VA examiner or to afford the Veteran a new VA examination. Accordingly, the case is REMANDED for the following action: 1. The RO should contact the January 2012 VA examiner in order to obtain a supplemental opinion. The RO must request that the January 2012 VA examiner opine as to whether a VA examination is required in order to provide the opinions requested herein. If so, the RO must provide the Veteran such an examination in compliance with the directives in Paragraph #2. If an examination is not required, the claims file should be made available to the examiner. The examiner must review all pertinent records associated with the claims file, including, but not limited to, the Veteran's service treatment and personnel records, post-service treatment records, and the lay statements of record. The examiner must specifically comment upon the Veteran's inservice treatment and his personnel records. Based on this review of the claims file, the examiner must opine as to whether it is at least as likely as not (50 percent probability or more) that any currently diagnosed psychiatric disability, other than PTSD, is related to or had its onset during the Veteran's active duty service or was due to or aggravated by a service-connected disability. NOTE: Service connection has been granted for arthritis of the lumbar spine, a cervical strain, tinnitus, right lower extremity radiculopathy, and bilateral hearing loss. The examiner should consider only these disabilities with respect to whether a current psychiatric disability, other than PTSD, was caused or aggravated by a service-connected disability. All rendered opinions must be accompanied by a thorough rationale. The examiner must indicate whether there was any further need for information to make a determination. If the examiner cannot render a requested opinion, the examiner must provide the reasoning for that determination. Additionally, the examiner must indicate whether the opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The term at least as likely as not does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. "Aggravation" is defined as a permanent worsening of a disability beyond its natural progression. 2. If the January 2012 VA examiner is unavailable or states that a VA examination is required, the RO should then provide the Veteran a VA examination to ascertain the nature and etiology of any psychiatric disability present, other than PTSD. All indicated studies must be performed, and all findings must be reported in detail. The claims file should be made available to the examiner in conjunction with the examination. The examiner must review all pertinent records associated with the claims file, including, but not limited to, the Veteran's service treatment and personnel records, post-service treatment records, and the lay statements of record. The examiner must specifically comment upon the Veteran's inservice treatment and his personnel records. Based on this review of the claims file, the examiner must opine as to whether it is at least as likely as not (50 percent probability or more) that any currently diagnosed psychiatric disability, other than PTSD, is related to or had its onset during the Veteran's active duty service or was due to or aggravated by a service-connected disability. NOTE: Service connection has been granted for arthritis of the lumbar spine, a cervical strain, tinnitus, right lower extremity radiculopathy, and bilateral hearing loss. The examiner should consider only these disabilities with respect to whether a current psychiatric disability, other than PTSD, was caused or aggravated by a service-connected disability. All rendered opinions must be accompanied by a thorough rationale. The examiner must indicate whether there was any further need for information to make a determination. If the examiner cannot render a requested opinion, the examiner must provide the reasoning for that determination. Additionally, the examiner must indicate whether the opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The term at least as likely as not does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it. "Aggravation" is defined as a permanent worsening of a disability beyond its natural progression. 3. If a new VA examination is necessary, the RO must notify the Veteran that it is his responsibility to report for any examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). 4. Once the above actions have been completed, the RO should readjudicate the Veteran's claim. If any benefit remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for further appellate review. The Veteran 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 claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals 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. 2012). _________________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs