Citation Nr: 1325353 Decision Date: 08/09/13 Archive Date: 08/13/13 DOCKET NO. 06-05 165 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, claimed as posttraumatic stress disorder (PTSD). WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION The Veteran had active service from October 1956 to March 1959. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision of the Atlanta, Georgia Regional Office (RO) of the Department of Veterans Affairs (VA). This case was previously before the Board in October 2008, at which time additional development was ordered. The case is again before the Board for appellate review. Claims for service connection for PTSD may encompass claims for service connection for all diagnosed psychiatric disabilities. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). In keeping with Clemons, the Veteran's claim is recharacterized as a claim for service connection for an acquired psychiatric disorder, to include PTSD. The Veteran requested a Travel Board hearing. The requested hearing was conducted in Atlanta, Georgia, by the undersigned Veterans Law Judge, in August 2008. A transcript of this hearing is associated with the Veteran's claims files. FINDINGS OF FACT 1. No provider has assigned a diagnosis of PTSD. 2. The Veteran was advised that entitlement to service connection for PTSD could not be established without medical evidence of the claimed disorder, but he failed, without good cause, to report for VA examination. 3. The available record does not provide a basis for concluding that the Veteran has an acquired psychiatric disorder, however diagnosed, which is attributable to the military service. CONCLUSION OF LAW The criteria for establishing service connection for an acquired psychiatric disorder, to include PTSD, have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.125 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran contends that he has PTSD as a result of a stressor in service. Before addressing the merits of the claim, the Board will address whether VA has met its duties to the Veteran. Duties to Assist and Notify VA has a duty to notify and assist claimants in substantiating a claim 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, 3.326(a). Proper notice from VA must inform the claimant 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 claimant 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). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See 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. In this case, following the Veteran's January 1998 submission of a claim for service connection for PTSD, the Veteran was notified in 1999 that he should submit any evidence he had to support his claim. The Veteran completed and returned a PTSD questionnaire identifying certain stressors. In May 2001, the Veteran was notified of VA's duties to assist him as enacted by the VCAA. In March 2005, the Veteran reiterated his claim, and notice of the criteria for service connection in compliance with the VCAA as interpreted at that time was issued to the Veteran in March 2005. The Veteran was afforded the opportunity to submit or identify evidence. In October 2008, the Board Remanded the claim. The Appeals Management Center (AMC) issued a November 2008 letter which addressed all criteria for service connection, and advised the Veteran of the criteria for determining disability evaluation assignments and effective date assignments when any claim for service connection is granted. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). That 2008 notice advised the Veteran of all elements of required notice. The Board acknowledges that the initial notice issued to the Veteran after he submitted his 1998 claim did not address all elements of notice expected since the enactment of the VCAA. However, during the course of the 15 years of this appeal, including since the 2008 Board remand, the Veteran has received several post-adjudicative notices. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). To the extent that there was any notice deficiency in the initial notices, any prejudice due to an error in notice has been overcome in this case by the complete development conducted following the 2008 Board Remand. The record, including the Veteran's testimony before the Board and his statements, demonstrates that the Veteran has actual knowledge of the evidence required to substantiate the claim at issue. See Shinseki v. Sanders/Simmons, 129 S.Ct. 1696 (2009). The multiple post-adjudicative notices have cured any notice defect, and no further notice to the Veteran is required. Duty to assist The RO also provided assistance to the appellant as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c). As an initial matter, the Board acknowledges that the service treatment reports are not of record. The Veteran has been notified, on several occasions, including by the 2008 Board Remand, that his service treatment records have not been located. Most recently, in December 2012, a formal finding of unavailability was placed in the claims file. The Veteran was again notified that the records have not been located by a Supplemental Statement of the Case (SSOC) issued in February 2013. That notice was sent to the Veteran's correct and most recent address of record and has not been returned to VA as undelivered. The record demonstrates that the only records of the Veteran's service have been submitted by the Veteran. Numerous attempts to obtain the Veteran's complete service treatment records, beginning when the Veteran first submitted a claim for service connection in the 1980s. During the pendency of the claim on appeal, the National Personnel Records Center (NPRC) advised VA in 1998 that the Veteran's records had been burned in a fire at NPRC. VA asked NPRC to search for service treatment records, personnel records, or any records available. NPRC was asked to attempts to reconstruct the Veteran's records. NPRC notified VA in November 2011 that no service treatment records, personnel records, or other records, were available, and that the Veteran's records could not be reconstructed. Further attempts to obtain service treatment records or personnel records would be fruitless. The RO requested that the Joint U.S. Army and Joint Services Records Research Center (JSRRC) research the Veteran's stressor allegations. JCRRC has confirmed the occurrence of a January 1958 incident reported as a stressor by the Veteran. The duty to assist the Veteran to corroborate the reported stressor is met. At his 2008 hearing before the Board, the Veteran testified that PTSD was treated during a 2007 VA hospitalization or after that hospitalization. VA treatment records beginning in 1998 have been obtained, including records of the Veteran's 2007 VA hospitalization. In addition to printed VA outpatient treatment records spanning many years, electronic VA treatment records from 2009 to October 2012 have been obtained and are associated with the record on appeal. The Veteran has identified several private providers, and those records have been requested and obtained. The Veteran has not identified any non-VA records which should be obtained that are not associated with the record. It appears that all known and available post-service records relevant to the issue on appeal have been obtained and are associated with the Veteran's claims file. The Veteran does not contend that he received private or VA treatment for PTSD before he submitted the 1998 claim underlying the appeal. The Veteran was scheduled for VA psychiatric examination in January 2013 to determine whether the claimed disorder, PTSD, whether present. However, the Veteran failed to report for that examination. The Veteran has not requested that the examination be rescheduled. The Veteran was notified, in a February 2013 supplemental statement of the case (SSOC), that he did not report for VA examination, and that his claim was denied because there is no evidence of a medical diagnosis of PTSD. No written communication to the Veteran has been returned to VA as undelivered. At this juncture, the Board points out that in an original compensation claim, when the claimant does not appear for a scheduled examination without good cause, the claim shall be decided based on the evidence of record. 38 C.F.R. § 3.655 (a),(b). In this case, the Veteran has not made any attempt to show good cause or explain why he missed the scheduled VA examination. The record reflects that the Veteran was scheduled for VA examination with a fee-basis provider. Scheduling of such examination requires notice of the scheduled examination to the Veteran by both VA and by the fee-based provider. As to notice issued by VA, there is a presumption of regularity under which it is presumed that government officials have properly discharged their official duties. United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926); Ashley v. Derwinski, 2 Vet. App. 307, 308 (1992) (Ashley II). The presumption of regularity is not absolute; it may be rebutted by the submission of "clear evidence to the contrary. Ashley II, 2 Vet. App. at 309 (citing Rosler v. Derwinski, 1 Vet. App. 241, 242 (1991)). However, the Veteran has submitted no evidence to rebut the finding that he was notified of the examination. The Board notes that the Veteran's lack of response to notice for VA examination or to the SSOC informing him that he had missed the scheduled examination contrasts with the Veteran's inquiry as to why VA compensation was withheld during a brief incarceration in early 2012. While VA has a statutory duty to assist the Veteran in developing evidence pertinent to a claim, the Veteran also has a duty to assist and cooperate with the VA in developing evidence; the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190 (1991); see also Turk v. Peake, 21 Vet. App. 565, 568 (2008). The Veteran has, as noted above, testified regarding his appeal. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that a hearing officer has duties to explain fully the issues still outstanding that are relevant and material to substantiating the claim by explicitly identifying them for the claimant, to suggest that a claimant submit evidence on an issue material to substantiating the claim when such evidence is missing from the record or when the testimony at the hearing raises an issue for which there is no evidence in the record. 23 Vet. App. at 496-97. In this case, the undersigned Veteran's Law Judge (VLG) conducted the hearing and discussed the missing evidence, and advised the Veteran that evidence of a medical diagnosis of PTSD was missing. The Veteran testified to his belief that VA medical records would show a diagnosis of a psychiatric disorder. If any hearing officer duty was not met at either hearing before the Board, such defect has been cured by the lengthy course of the development and readjudication since the hearings were conducted. The communications to the Veteran prior to and following the scheduled examination appear to be correctly addressed to the most recent address provided by the Veteran. The Veteran has not responded, and the communications have not been returned to VA as undelivered. Therefore, a remand and further action to attempt again to afford the Veteran VA examination is not warranted. Consideration of claim on the merits Service connection is granted if the evidence establishes that a Veteran incurred a disease or injury, or had a preexisting injury aggravated, in the line of duty of his active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for certain chronic diseases when such disease is manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. PTSD is not defined as a chronic disease for which service connection may be presumed. However, certain psychiatric disorders are defined as "chronic" diseases within the meaning of the statute, and the provisions about chronic disease are considered further, below. Additionally, disability that is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. In addition, secondary service connection may also be established by any increase in severity (i.e., aggravation) of a non-service-connected disease or injury that is proximately due to or the result of a service-connected disease. 38 C.F.R. § 3.310 (2006); Allen v. Brown, 7 Vet. App. 439, 448 (1995). (The Board notes that there has been an amendment to the provisions of 38 C.F.R. § 3.310 during the pendency of the Veteran's claim. See 71 Fed. Reg. 52,744-47 (Sept. 7, 2006). The Veteran has one disability for which service connection has been granted, urethral stricture. The Board will consider whether there is evidence that the service-connected disability is etiologically related to or aggravates any acquired psychiatric disorder. The existence of a current disorder is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F. 3d 1328 (1997) (interpretation of 38 U.S.C.A. § 1110 and 38 U.S.C.A. § 1131 as requiring the existence of a present disorder for VA compensation purposes cannot be considered arbitrary and decision based on that interpretation must be affirmed); Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). That a condition or injury occurred in service alone is not enough. There must be disability resulting from that condition or injury. In the absence of proof of a present disability, there can be no valid claim or the grant of the benefit. Rabideau v. Derwinski, 2 Vet. App. 141 (1992). The requirement of a current disability is satisfied when the claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, and that a claimant may be granted service connection even though the disability resolves prior to adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). When entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination, and a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. 38 C.F.R. § 3.655(a), (b). Analysis The Veteran argues that service connection is warranted for PTSD. He argues that he has PTSD as a result of incidents which occurred while he was stationed in North Africa as a firefighter. The Veteran testified the he witness airplane crashes in which service members died because he was at the airfield to fight fires caused by the crashed. The Veteran's DD214 shows that he was a firefighter. The Veteran has submitted records showing his assignment to an installation in North Africa, and his documents as to when he was stationed there are presumed to be accurate. As noted above, JSRRC has confirmed that at least one incident of a crash of an aircraft with fire and death of service personnel on Board the aircraft. The Veteran testified that he attributed his mental disorders to the fact that airplanes carrying "live" "bombs" crashed at the Air Force Base where he was assigned as a firefighter. The Veteran testified that this was very stressful, both because of the deaths of the personnel and because of the worry that the bombs would explode. The Board has reviewed the entire record. Post-service private medical records dated from 1959 through 1989 and VA outpatient treatment records dated from 1987 to 1997 disclose no complaint of an acquired psychiatric disorder and disclose no assignment of a medical diagnosis of an acquired psychiatric disorder. In July 1997, the Veteran underwent psychiatric evaluation. The Veteran reported that he had mental distress due to his service-connected urethral structure and residuals of that disability, and due to incidents which occurred while he was in service. The Veteran reported depression and reported negative focus on his urologic problems. The examiner concluded that the Veteran had dysthymia, a depressive reaction to a chronic medical condition, and alcohol dependence. In January 1998, the Veteran sought service connection for "PTSD/nerves." In support of that claim, he submitted a record related to a security clearance investigation and personnel records showing that he was a fire fighter. VA records dated from 2000 through July 2003 reflect that the Veteran sought VA care for a variety of medical problems, including increased blood pressure or tachycardia following episodes of binge drinking. He required private inpatient treatment in December 2002 for accelerated hypertension secondary to noncompliance with medications, which the Veteran attributed to drinking and forgetting to take his medications. No diagnosis of a psychiatric disorder other than alcohol dependence was assigned during the private hospitalization, or the following VA treatment. In 2004, the Veteran was referred for psychiatric evaluation after medical crises due to binge drinking. Psychiatric evaluations in September 2004 through November 2004 resulted in assignment of diagnosis of one psychiatric disorder, alcohol abuse. Lengthy VA outpatient treatment records (124 numbered pages) from September 2004 to August 2005 reflect that the Veteran was treated for a variety of medical problems and for alcohol abuse. He was scheduled to attend outpatient substance abuse treatment. In January 2007, the Veteran was admitted for VA inpatient alcohol detoxification. He reported being depressed. The admitting provider noted that possible diagnoses of social phobia, anxiety, and PTSD should be considered. However, the Veteran was discharged at his own request without evaluation for these disorders after he decided not to continue with substance abuse treatment. No diagnosis of a psychiatric disorder other than alcohol dependence was assigned. See January 2007 records, Charleston, South Carolina VA Medical Center, 68 pages. VA outpatient treatment records dated in February 2009 reflect that his depression screen was negative (no depression shown). Four PTSD screening questions were positive in February 2009. However, the Veteran did not obtain further mental health treatment. VA records dated in 2009 through 2012 reflect that the diagnosis of anxiety disorder assigned at the time of the Veteran's January 2007 was continued in the Veteran's problem list. However, the Veteran did not obtain additional evaluation or treatment for any acquired psychiatric disorder, other than substance abuse, from January 2009 through October 2012. The VA and private clinical evidence of record establishes that no identified private provider and no VA provider has assigned a diagnosis of PTSD. Positive responses to PTSD screening questions have been noted, but such screening is not equivalent to assignment of a diagnosis, under VA regulations which require that a diagnosis of PTSD for purposes of service connection conform with certain diagnostic criteria. See 38 C.F.R. § 4.125(a) (requiring diagnoses of mental disorders fully comply with the requirements of the American Psychiatric Association's Diagnostic and Statistical Manual Of Mental Disorders, 4th Edition (1994) [DSM-IV]). Similarly, a diagnosis of possible anxiety (r[ule]/o[ut] anxiety) has been assigned, but no evaluation which discusses the DSM-IV criteria has been conducted, and no opinion of record links the Veteran's possible anxiety to his service, any incident of service, or a service-connected disability. The VA examination scheduled in January 2013 would have been expected to provide opinion as to the Veteran's acquired psychiatric disorders during the pendency of the appeal, but the Veteran did not appear for that examination. 38 C.F.R. § 3.655 (a),(b) Likewise, the VA treatment records include a notation that a diagnosis of compulsive gambling has been assigned, but there is no evaluation for that disorder which discusses the DSM-IV criteria has been conducted, and no opinion of record links the Veteran's possible anxiety to his service, any incident of service, or a service-connected disability. The Veteran's alcohol dependence, is not a disorder for which service connection may be granted. Direct service connection for a disability that is a result of a claimant's own abuse of alcohol is precluded for purposes of all VA benefits for claims filed after October 31, 1990. See VAOPGCPREC 7-99 (June 9, 1999); VAOPGCPREC 2-98 (Feb. 10, 1998). The Board has considered whether presumptive service connection is available for any psychiatric disorder which is defined as chronic and was manifested within one year following the Veteran's service. There is no evidence that the Veteran manifested any acquired psychiatric disorder which is defined as chronic (i.e., psychosis) within an applicable presumptive period. See 38 U.S.C.A. § 1101. The Board has considered whether the Veteran is entitled to service connection for an acquired psychiatric disorder as secondary to or aggravated by a service-connected disability. 38 C.F.R. § 3.310. One provider noted, in 1997, that the Veteran had a depressive reaction to a chronic medical condition, and it appears that the provider may have been referencing the Veteran's service-connected urethral stricture as an etiologic factor for the depressive reaction. However, this diagnosis was assigned prior to the Veteran's submission of his January 1998 claim for service connection for an acquired psychiatric disorder. No provider has noted a diagnosis or possible diagnosis of a depressive reaction during the pendency of this appeal. Therefore, the evidence available does not support a grant of service connection for a depressive reaction. The VA examination scheduled in January 2013 would have been expected to provide opinion as to the Veteran's acquired psychiatric disorders during the pendency of the appeal, but the Veteran did not appear for that examination. No provider has assigned a diagnosis of PTSD, so service connection may not be granted for PTSD. The evidence of record is not sufficient to warrant a grant of service connection for an acquired psychiatric disorder on a direct, presumptive, or secondary basis. The Board has considered whether there is reasonable doubt which may be resolved in the Veteran's favor. There is not sufficient evidence favorable to the claim on any basis to place the evidence in equipoise. The preponderance of the evidence is against the claim for service connection for an acquired psychiatric disorder. The claim is denied. ORDER The appeal for service connection for an acquired psychiatric disorder, to include PTSD, is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs