Citation Nr: 1324119 Decision Date: 07/29/13 Archive Date: 08/07/13 DOCKET NO. 10-16 315 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama THE ISSUE Entitlement to service connection for an innocently acquired psychiatric disorder to include a posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD M. Turner, Counsel INTRODUCTION The Veteran served on active duty from February 1951 to October 1952. This matter initially came before the Board of Veterans' Appeals (Board) on an appeal from a rating decision issued by the RO in Cleveland, Ohio. The case is presently under the jurisdiction of the RO in Montgomery, Alabama. The Veteran testified at a hearing before the undersigned Veterans Law Judge in March 2013. The Board remanded the case for additional development of the record in April 2013. The case has been now returned to the Board for appellate disposition. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran is not shown to have a diagnosis of PTSD or any other acquired mental disorder that is related to his period of active service. CONCLUSION OF LAW The Veteran does not have a disability manifested by a diagnosis of PTSD or other acquired mental disorder that is due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 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 that explained how VA could assist him with developing evidence in support of his claim. The letter also explained what the evidence needed to show in order to establish service connection for a claimed disability as well as explained how VA assigns ratings and effective dates for service connected disabilities. At the April 2013 hearing, the Veterans Law Judge also explained this issue and discussed with the Veteran's representative the element of service connection which was missing in this case, specifically, a diagnosis of PTSD or any mental disorder related to the Veteran's service. 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 paper and electronic VA treatment records and a transcript of the testimony that was taken at the March 2013 hearing. The Veteran was also afforded two VA examinations which fully considered the history and symptoms presented by the Veteran. The second of these examination was conducted in accordance with the instructions which were set forth in the Board's April 2013 remand, which directed that a second examination take place in case the Veteran had misunderstood the questions asked at his first examination due to his hearing disability. Also in accordance with the remand, the Veteran was sent a letter in April 2013 which requested that the Veteran identify and provide releases for any health care provider who had treated him for PTSD. The Veteran did not identify any treatment records in response to this letter. The Board finds that VA satisfied its obligations pursuant to the VCAA as well as substantially complied with the instructions which were set forth in the March 2013 hearing. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Additionally, the Board notes that in this case, the Veteran's service treatment records (STRs) are unavailable through no fault of the Veteran. The Board acknowledges its heightened obligation to consider carefully the benefit of the doubt rule in cases where the Veteran's service treatment records are unavailable through no fault of the Veteran. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Service connection The Veteran contends that he has PTSD due to his service experiences. 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 any 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). Generally, establishing a nexus required medical evidence. However, in the case of chronic diseases set forth in 38 C.F.R. § 3.309, a nexus may also be establishing by showing continuity of symptoms since service. 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 expanded. 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. The Veteran reports serving as an assistant gunner while on active duty. He reports having seen people die, including one individual who died near him after a round exploded when it left the gun tube. He reports still thinking about that moment and being haunted by the sight of dead men around him. The Board notes that, while the Veteran does not have any combat-related decorations, he describes having experiences that are consistent with his military occupational specialty in field artillery. The Veteran was evaluated by a VA contract psychologist with respect to his claim in February 2012. After reviewing the record and interviewing the Veteran, the examiner concluded that the Veteran did not have PTSD or any other mental disorder. The examiner took a social history from the Veteran, who reported being married for 58 years with two adult children and three grandchildren and having good relationships with his family. He reported having a lot of friends, some of whom had died. He had good social relationships and social interaction abilities. The Veteran reported serving in the artillery for 21 months and being deployed to Korea. He was service connected for hearing loss as a result of this experience. After service, he worked in an auto body shop and was now retired. After he retired, he worked in a relative's carpentry shop for awhile. He had never received any mental health treatment. The Veteran reported that, while in Korea, he was required to discharge his weapon and was under fire multiple times from hostile enemy activity. He also saw dead and wounded soldiers. The examiner noted that the Veteran's stressor was sufficient to meet Criterion A for PTSD. However, the examiner noted that the Veteran did not meet criterion B in that he did not have any re-experiencing symptoms. He did not meet criterion C because there was no persistent avoidance of stimuli associated with the trauma or numbing of general responsiveness. He also did not meet criterion D because there were no symptoms of increased arousal. He did not meet criteria E or F (addressing duration and severity of symptoms) because he did not meet the full criteria for PTSD. He did not have any symptoms related to a mental health diagnosis. The examiner explained that the Veteran did not meet the criteria for any mental health diagnosis at this time. He showed intact social interaction and cognitive functioning given his age. The examiner noted that the Veteran was very hard of hearing, but this had not impacted her ability to obtain the information needed for her interview of the Veteran. The Veteran testified at a March 2013 hearing. He denied receiving any treatment for PTSD. He testified that, in one incident during service, a gun backfired and went into the chest of another soldier who was very close to the Veteran. The individual was killed. The Veteran's wife claimed that the Veteran thought about that all the time because he told her that. The Veteran did not identify or describe any psychiatric symptoms at his hearing. The Veteran's representative asserted that the Veteran might not have understood the questions that were asked at his VA examination due to his hearing loss disability. Although there was no indication in the February 2012 examination report that this was case, the Veteran was nonetheless afforded another VA examination in May 2013 with a different psychologist who likewise concluded that he did not have PTSD or any other mental disorder. The Veteran told the examiner that he had a very good relationship with his wife of 59 years. His children visited him several times a week and helped him with yard work and chores. The Veteran particularly enjoyed spending time with his great grandson and also enjoyed gardening. He and his wife went out to dinner several times a month. The Veteran retired from work in 1996 and then continued to work for his nephew for about 8 more years. He never sought treatment for a mental health condition. The examiner noted that, when the Veteran was examined in February 2012, he was not diagnosed with any mental health problem. The Veteran denied having any current mental health problems. He specifically denied having depression, anxiety or mood swings. The examiner did not address the Veteran's stressor but noted that the Veteran did not meet criteria B, C, D, E, or F for PTSD. He did not have any mental health symptoms. The Veteran in this case has not been diagnosed with PTSD or any other mental disorder that is related to his experience during military service. He was examined on different occasions by two different psychologists, and both concluded that the Veteran did not have PTSD or any other mental disorder. The examiner who performed the May 2012 examination specifically noted that the Veteran denied having anxiety, mood swings, or depression. Both examiners observed that the Veteran had no re-experiencing a traumatic event, persistent avoidance of stimuli associated with the trauma or numbing of general responsiveness, or symptoms of increased arousal. No psychiatric symptoms were documented at either examination. Social histories taken at each examination revealed that the Veteran had a satisfying family and social life. While the Veteran's representative believed that the Veteran had PTSD based on his service experiences, his lay opinion is of limited probative value to establish the diagnosis of PTSD or any other mental health condition. It is clearly outweighed by the opinions of two psychologists who examined the Veteran and determined that he did not meet the diagnostic criteria for PTSD or any other mental health diagnosis. The Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine is inapplicable in the instant case because the preponderance of the evidence is against the Veteran's claim. See, e.g., Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). Accordingly, the appeal is denied. ORDER Service connection for PTSD is denied. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs