Citation Nr: 1326506 Decision Date: 08/20/13 Archive Date: 08/26/13 DOCKET NO. 08-06 035 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for a psychiatric disorder other than PTSD. 3. Entitlement to service connection for a left leg disability. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Turner, Counsel INTRODUCTION The Veteran was a member of the Texas Army National Guard from March 1964 to February 1965, with active duty for training (ACDUTRA) from June 1964 to December 1964. The Board notes that the Veteran claimed service connection specifically for PTSD. However, the medical evidence shows diagnoses of other psychiatric disorders, potentially arising from the same symptoms for which the Veteran was seeking benefits. A claim for service connection for a psychiatric disability encompasses all psychiatric symptomatology, regardless of how that symptomatology is diagnosed. Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009). This is because a claimant generally is not competent to diagnose his specific mental condition; he is only competent to identify and explain the symptoms that he observes and experiences. Clemons, 23 Vet. App. at 4-5. For this reason, the issue of entitlement to service connection for a psychiatric disorder other than PTSD was added to the title page. The Veteran testified before the undersigned Acting Veterans Law Judge in July 2010. A copy of the transcript of the hearing is of record. The Board notes that while on remand, the Appeals Management Center (AMC) granted service connection for a heart disorder, rated 60 percent disabling, effective January 9, 2007. The AMC explained that this was the date of the Veteran's reopened claim. However, in a September 2011 decision and remand, the Board found that new service treatment records (STRs) had been received since the original denial of the claim in March 1967, so that reconsideration of the March 1967 claim, rather than reopening of the claim, was necessary. Therefore, the record raises the issue of entitlement to an earlier effective date for service connection for the Veteran's heart disability. This claim has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issues of entitlement to service connection for a left leg disorder and entitlement to service connection for a psychiatric disorder other than PTSD are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the AMC, in Washington, DC. FINDINGS OF FACT 1. The Veteran's stressors not involving fear of hostile military or terrorist activity are not corroborated. 2. The Veteran's stressors involving fear of hostile military or terrorist activity are inconsistent with the places and circumstances of his service, which consists of ACDUTRA in the continental United States. 3. The Veteran was not shown to have PTSD due to fear of hostile military or terrorist activity or a corroborated stressor during his period ACDUTRA. CONCLUSION OF LAW PTSD was not incurred in 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 VA has 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). Proper 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. Notice requirements are applicable to all five elements of a service connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sum nom Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). 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. Notice should be provided to a claimant before the initial unfavorable decision on a claim by the AOJ. Pelegrini v. Principi, 18 Vet. App. 112, 115 (2004). However, the 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). In this case, the Veteran was sent a letter in March 2007 that provided the required notice. 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 STRs, service personnel records (SPRs), paper and electronic VA treatment records, and a transcript of the Veteran's testimony at the July 2010 hearing. The Veteran also identified treatment that he received at Brooke military hospital. However, these records were found to be unavailable. In any event, they purportedly involved the Veteran's claimed left leg disorder and not a mental disorder. The Veteran's Social Security Administration (SSA) disability records were destroyed and therefore could not be obtained. Proper notice was provided to the Veteran. The Board notes that the claims file contains VA medical records which were received by the AMC after the most recent supplemental statement of the case (SSOC) was generated. The Veteran was sent a letter asking whether he wished to waive RO jurisdiction of this evidence, and he did not respond, indicating that he declined to waive RO review. However, upon further review of the evidence, the Board determined that the VA medical records were actually duplicates of records that were already in the claims file prior to the issuance of the most recent SSOC and had apparently been requested from, and sent by, the VA Medical Center (VAMC) on multiple occasions. The Veteran also sent the Board copies of these records himself, but as already noted these records were duplicates of records which were already in the claims file. Therefore, there is no bar to the Board's consideration of this case as the documents are not pertinent. See 38 C.F.R. § 20.1304(c) (2012). The Veteran was not afforded a VA examination with respect to this claim. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but contains: (1) competent lay or medical evidence of disability or recurrent or persistent symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4). Here, as is discussed further below, the evidence of record does not establish any in-service event, injury, or disease. See McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). The existence of a corroborated PTSD stressor and or a stressor involving fear of hostile military or terrorist activity was not established and PTSD was not diagnosed during service. Thus, an examination is not warranted. Additionally, at the Board hearing, testimony was elicited by the Veteran's representative and the AVLJ regarding the elements of service connection; thus the material issue on appeal was fully developed. See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010) (noting that a VLJ has a duty to fully explain the issues and suggest the submission of evidence that may have been overlooked but there is no prejudice to the Veteran where the material issue is fully developed on the record); see also 38 C.F.R. § 3.103(c)(2) (2012). In a September 2011 remand, the Board instructed that additional attempts be made to obtain any additional service treatment or service personnel records, including records from Brooke hospital. These records were requested from appropriate sources. Records were specifically requested from Brooke hospital but no records were received. An October 1964 memorandum from the Texas Military Forces provided that the records which were provided constituted all of the service treatment records pertaining to the Veteran. Further attempts to obtain records from Brooke hospital would be futile. Therefore, there was substantial compliance with this directive. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board also instructed the AMC to request the Veteran's VA medical records from two VA facilities. Records were received in response to this request after the most recent SSOC was issued, but they were duplicates of records which were already in the claims file. It does not appear that any additional VA treatment records exist other than the records which are included in the Veteran's electronic and paper claims files. The Board requested that the AMC obtain the Veteran's SSA disability records. The SSA responded that the records had been destroyed, therefore these records could not be obtained. The Board finds that there was substantial compliance with these directives. The Board directed that the AMC attempt to obtain corroboration of the Veteran's claimed stressors from his period of ACDUTRA. Appropriate sources were contacted, but no records corroborating the Veteran's claimed stressors were found. The Board finds that these directives were substantially complied with. The Board also instructed that the Veteran be afforded a VA psychiatric examination if any of his claimed stressors were corroborated. No stressors were corroborated, so an examination was not provided, which was in accordance with the remand directives. Other instructions in the remand pertained to claims for disabilities other than PTSD. The Board finds that there was substantial compliance with the instructions that were set forth in the Board's remand. Service connection The Veteran claims that he has PTSD related to his military service. Specifically, he claims that his PTSD was due to various in service stressors. The Veteran claims he saw a soldier get killed while he was in Vietnam, he saw another soldier killed on an infiltration course during basic training, and that he had problems with his superiors in service which caused stress. Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Active service includes any period of active duty for training in which the individual was disabled or died from a disease or injury incurred or aggravated in the line of duty and any period of inactive duty for training during which the individual was disabled by an injury that was incurred or aggravated in the line of duty or from an acute myocardial infarction, cardiac arrest, or cerebrovascular accident occurring during such training. 38 U.S.C.A. § 101(24). Service connection for PTSD requires: (1) medical evidence establishing a diagnosis of the disorder; (2) credible supporting evidence that the claimed in-service stressor occurred; and (3) a link established by medical evidence, between current symptoms and an in-service stressor. 38 C.F.R. § 3.304(f) (2013). The PTSD diagnosis must be made in accordance with the criteria of Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). 38 C.F.R. § 4.125(a) (2013). There are several avenues to document an in-service stressor, other than obtaining verification from the Joint Services Records Research Center (JSRRC) or other government records repository: an in-service PTSD diagnosis with lay testimony; combat service with lay testimony; prisoner of war status with lay testimony; lay evidence of personal assault with appropriate corroboration; and a stressor related to Veteran's fear of hostile military or terrorist activity, with appropriate medical evidence. 38 C.F.R. § 3.304(f) (2013). Recent regulatory amendments changed the evidentiary standards regarding stressors based on a Veteran's fear of hostile military or terrorist activity. See Stressor Determinations for Posttraumatic Stress Disorder, 75 Fed. Reg. 39,843, 39,852 (July 13, 2010) (to be codified at 38 C.F.R. § 3.304(f)(3), corrected by 75 Fed. Reg. 41,092 (July 15, 2010). These amendments are applicable to the Veteran's appeal. See Stressor Determinations for Posttraumatic Stress Disorder, 75 Fed. Reg. 39,843 (stating that the amendments are applicable to appeals currently before the Board that have not yet been decided). Lay evidence may establish an alleged stressor may where: 1) the stressor is related to the Veteran's fear of hostile military or terrorist activity; 2) a VA psychiatrist, VA psychologist, or VA-contracted psychiatrist or psychologist, 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; 3) the stressor is consistent with the places, types, and circumstances of the Veteran's service; and 4) there is no clear and convincing evidence to the contrary. See Stressor Determinations for Posttraumatic Stress Disorder, 75 Fed. Reg. 39,843, 39,852. Fear of hostile military or terrorist activity occurs where 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. See Stressor Determinations for Posttraumatic Stress Disorder, 75 Fed. Reg. 39,843, 39,852. Lay evidence may also establish an in-service stressor if the evidence establishes that a veteran engaged in combat with the enemy and the claimed stressor is related to that combat, 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. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(f)(2). If there is no combat experience, or if there is a determination that the veteran engaged in combat but the claimed stressor is not related to such combat, there must be independent evidence to corroborate the veteran's statement as to the occurrence of the claimed stressor. Doran v. Brown, 6 Vet. App. 283, 288-89 (1994). The veteran's testimony, by itself, cannot, as a matter of law, establish the occurrence of a non-combat stressor. Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). A layperson is competent to identify such disorders as varicose veins, tinnitus, and flat feet. Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); Charles v. Principi, 16 Vet. App. 370, 374 (2002); Falzone v. Brown, 8 Vet. App. 398, 405 (1995). A layperson is not competent to identify medical conditions that require scientific, technical, or other specialized knowledge, such as in identifying bronchial asthma. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Lay testimony, however, is competent to establish a diagnosis where the layperson is competent to identify the medical condition, is reporting a contemporaneous medical diagnosis, or describes symptoms that support a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Review of the Veteran's paper and electronic VA medical records shows diagnoses of PTSD. The Board finds, however, that he does not have a stressor that meets the above requirements. First, with respect to the Veteran's claim that he witnessed another soldier get killed in Vietnam in June or July 1964, this type of stressor may not require corroboration as it is based on the Veteran's fear of hostile military or terrorist activity. Additionally at his hearing the Veteran mentioned that a mortar round hit nearby him while he was in Vietnam, although he did not specifically refer to this as a stressor. The Board finds that these stressors and any allegation that the Veteran engaged in combat with the enemy are inconsistent with the times, places, and circumstances of the Veteran's service. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(f). At his hearing, the Veteran claimed that he was in Vietnam from January 1964 to January 1965. However, the Veteran's SPRs show that his only active duty was ACDUTRA from June 1964 to December 1964 with no foreign service. The Veteran does not have any awards or decorations related to Vietnam service. A "Certification of Military Service" dated in April 2006 specifically states that there was no active service other than for training purposes. ACDUTRA was shown to be from June 1964 to December 1964. A Report of Separation showed that the Veteran was medically discharged from the Texas National Guard by reason of a congenital heart defect while he was still a basic trainee with six months of active duty for training noted. Records show that the Veteran spent his entire period of ACDUTRA at Fort Polk, Louisiana and was later transferred to Fort Sam Houston in Texas for medical board proceedings and discharge. Although the Veteran testified that he believed that some of his records were lost, the records obtained by the AMC, including verification from the NPRC, show that the Veteran did not have any service in Vietnam. During part of the period the Veteran claims that he was in Vietnam he was affirmatively shown to be at Fort Polk, Louisiana for basic training. The remainder of the time was either before the Veteran was in the National Guard or when the Veteran was in the National Guard but was not on any type of active duty. The Veteran was discharged very shortly after leaving basic training based on the discovery of his congenital heart defect. The evidence clearly establishes that the Veteran did not have Vietnam service. His only active service was stateside active duty for training. Second, in addition to his stressors involving Vietnam service, the Veteran contended that he saw a recruit shot with an M60 during basic training. Since this stressor does not involve fear of hostile military or terrorist activity, corroboration is required. 38 C.F.R. § 3.304(f). Notably, the Veteran testified that this occurred in January or February 1964, which is prior to his period of active service. He did not provide any particular details about this incident. The AMC contacted the Joint Service Records Research Center (JSRRC) but they were unable to find records pertaining to this incident either around February 1964 or September 1964. The Army Crime Records Center was also contacted and had no records pertaining to the claimed incident. The Veteran's service records do not reference this incident. The incident was not corroborated. Finally, with respect to the Veteran's claim that he did not get along with his superiors and was generally under stress during basic training, this is not the type of allegation which is capable of corroboration. Additionally, there is no evidence of PTSD diagnosis or symptoms during service. The Veteran is competent to report such symptoms, but the Board finds his testimony in this regard not credible. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge); Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, consistency with other evidence), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The testimony is not credible; the Board notes that the Veteran continues to maintain that he has Vietnam service despite the clear record that he was discharged after his initial ACDUTRA period. Thus, there is no in-service stressor. Since the evidence does not establish the existence of a stressor, an essential criterion for service connection for PTSD was not met and the Veteran's claim must be denied. The Board considered the benefit of the doubt. However, the weight 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). ORDER Service connection for PTSD is denied. REMAND The Veteran's remaining claims require additional development. Regarding the claim for non-PTSD mental disorders, remand is required for initial adjudication and a VA examination. The Veteran has been diagnosed with other mental disorders including major depressive disorder and dysthymic disorder. The Veteran reported that basic training was stressful and difficult for him and he thereafter developed a mental disorder. In March 2007 the Veteran told a health care provider that he had anxiety symptoms due to his medical problems, although which medical problem was not specified. However, the Veteran is service connected for a heart problem that is rated 60 percent disabling, among other non-service connected medical conditions. The RO has not yet adjudicated the portion of the Veteran's claim as it relates to disorders other than PTSD, which is necessary prior to the Board rendering a decision on this claim. Additionally, given the low standard for provision of a VA examination that was set forth in McClendon v. Nicholson, 20 Vet. App. 79 (2006), the Veteran should be afforded a VA examination to determine whether his mental disorder(s) were caused or aggravated either by his period of active service or his heart disability. Regarding the claim for service connection for a left leg disorder, remand is required to obtain compliance with a prior remand and to obtain an adequate examination. In accordance with the Board's September 2011 remand instructions, the Veteran was afforded a VA examination for his left leg in January 2013. However, that examination is inadequate. With regard to diagnosis, the examiner checked "yes" to whether imaging studies showed arthritis. However, in the remarks section, the examiner noted that the diagnosis was "strain- both knees- negative x-rays." These findings directly contradict each other and must be clarified upon remand. Moreover, the examiner provided a negative nexus opinion without a supporting rationale. Thus the examination is inadequate and also did not comply with the Board's remand instructions, which specifically requested that the examiner provide a rationale for any conclusions reached. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Therefore, because the examination was inadequate and additionally did not comply with the remand instructions, remand for clarification of the examination report is necessary. Accordingly, the case is REMANDED for the following action: 1. Contact the examiner who conducted the January 2013 VA examination, or a similarly qualified examiner. The claims folder must be made available to the examiner. The rationale for all opinions expressed must be provided. If an opinion cannot be provided without resort to speculation, it must be noted in the examination report, and a rationale provided for that conclusion. Request that the conflict between the box checked "yes" for x-ray evidence of arthritis, and the remark that the Veteran had knee strain with negative x-rays be reconciled. Additionally, instruct that the examiner provide a complete rationale for the conclusion regarding the etiology of the Veteran's left leg disorder. The examiner must take into account STRs, post-service treatment records, examination results, and the contentions of the Veteran about his injuries and symptoms in and after service. If the examiner determines that a new examination is required, one must be conducted. 2. Afford the Veteran a VA psychiatric examination. The claims folder, including a copy of this remand, must be made available to the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. The rationale for all opinions expressed must be provided. If an opinion cannot be provided without resort to speculation, it must be noted in the examination report, and a rationale provided for that conclusion. The examiner should indicate whether it is at least as likely as not (at least 50 percent likely) that any diagnosed non-PTSD mental disorder is caused or aggravated by the Veteran's period of active duty for training or caused or aggravated by his service connected heart disability. 3. After completion of the above development, the Veteran's claims for service connection for a left leg disorder and a psychiatric disorder other than PTSD should be re-adjudicated. If the determinations remain unfavorable to the Veteran, he and his representative should be provided with a supplemental statement of the case (SSOC) and given an opportunity to respond thereto. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matter or matters 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). ______________________________________________ K. MILLIKAN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs