Citation Nr: 1327967 Decision Date: 09/03/13 Archive Date: 09/10/13 DOCKET NO. 11-18 585 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for degenerative arthritis of the thoracolumbar spine. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel INTRODUCTION The Veteran served on active duty from December 1952 to December 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The Veteran testified before a Decision Review Officer (DRO) in June 2010. A transcript of this hearing is associated with the claims file. 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). The issue of entitlement to service connection for degenerative arthritis of the thoracolumbar spine is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT The Veteran is not currently diagnosed with PTSD or any other psychiatric disorder. CONCLUSION OF LAW PTSD was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist 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 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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 in accordance with 38 C.F.R. § 3.159. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Here, the duty to notify was satisfied by way of a letter sent to the appellant in September 2008 that fully addressed all notice elements and was sent prior to the initial AOJ decision in this matter. The letter informed the appellant of what evidence was required to substantiate the claim and of the appellant's and VA's respective duties for obtaining evidence. In addition, the letter informed the Veteran that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board notes that the RO has attempted to retrieve the Veteran's service treatment and personnel records. However, these records are unavailable because they were apparently destroyed by fire while in the possession of the Government. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991) (where records are apparently lost while in the possession of the government, a heightened obligation applies to consider carefully the benefit-of-the-doubt rule). The Veteran was notified that these records were unavailable and was asked to provide additional information in June 2009. All relevant identified treatment records regarding the Veteran's claim of entitlement to service connection for PTSD have been obtained and associated with the claims file. At a hearing in June 2010 the Veteran reported that he received treatment from Dr. S., a psychiatrist, and counseling from a Dr. D. The Veteran reported that Dr. S. moved to Las Vegas after practicing in Flint, Michigan and that he died. He stated that he did not know of any way to obtain records from this physician as nobody took over his office and he was deceased. The Veteran indicated that he would submit a release for the records of Dr. D. An authorization to obtain treatment records from another physician, Dr. R.D., was provided by the Veteran and records were obtained from this provider. As discussed below, the records from Dr. R.D. do not indicate any counseling or psychiatric treatment. There is no indication that the Veteran provided any further identification or provided any authorization to obtain the records from the Dr. D. reported at the hearing. Pursuant to 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), although VA is required to "make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the Veteran's claim for benefits" so long as he "adequately identifies those records and authorizes the Secretary to obtain them," VA's duty to secure records extends only to relevant records. 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c)(1); Hyatt v. Nicholson, 21 Vet. App. 390, 394 (2007) (defining relevant evidence for purposes of 38 U.S.C.A. § 5103A); see also Loving v. Nicholson, 19 Vet. App. 96, 102 (2005). As such, the Board finds that it is unnecessary to remand the claim for attempts to obtain these records. The appellant was afforded a VA medical examination in August 2010. Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Entitlement to service connection for PTSD in particular requires medical evidence diagnosing PTSD in accordance with the DSM-IV; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. §§ 3.304(f); 4.125(a). On the question of the occurrence of an in-service stressor to support the diagnosis of PTSD, the evidence necessary to establish the occurrence of an in-service stressor varies depending on whether or not the Veteran engaged in combat with the enemy. Gaines v. West, 11 Vet. App. 353, 358 (1998). If it is determined through military citation or other supportive evidence that a Veteran engaged in combat with the enemy, and the claimed stressor is related to combat, the Veteran's lay testimony regarding the reported stressor must be accepted as conclusive evidence as to the actual occurrence and no further development or corroborative evidence will be necessary, provided that the testimony is found to be satisfactory and consistent with the circumstances, conditions or hardships of such service. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d), (f). The phrase "engaged in combat with the enemy" means that the Veteran must have personally participated in a fight or encounter with a military foe or hostile unit or instrumentality. The fact that the Veteran served in a "combat zone" does not necessarily mean that he engaged in combat against the enemy. Whether or not a Veteran "engaged in combat with the enemy" must be determined through recognized citations or other official records. No single item of evidence is determinative, and VA must assess the credibility, probative value, and relative weight of each item. Any assertions of combat service are not ignored, but are evaluated along with other evidence. A mere assertion of combat service, alone, is insufficient to establish this fact. VAOPGCPREC 12-99; Zarycki v. Brown, 6 Vet. App. 91 (1993) (mere presence in a combat zone is not sufficient to establish combat service). Effective July 13, 2010, the regulations governing adjudication of service connection for PTSD were liberalized, in certain circumstances, with respect to the evidentiary standard for establishing the required in-service stressor. For cases pending before VA as of that date, the following regulation applies: 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. 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. 38 C.F.R. § 3.304(f)(3). In each case where a Veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's treatment records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). The Veteran seeks entitlement to service connection for PTSD. The Veteran contends that he currently suffers from PTSD due to exposure to combat while driving a truck in convoys in the Republic of Korea. The Board notes that the Veteran's service records are missing and were likely destroyed by fire. Under such circumstances, the Court has held that there is a heightened obligation on the part of VA to explain findings and conclusions and to consider carefully the benefit of the doubt rule. See Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). However, the case law does not lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant. See Russo v. Brown, 9 Vet. App. 46 (1996). Moreover, there is no presumption, either in favor of the claimant or against VA, arising from missing records. See Cromer v. Nicholson, 19 Vet. App. 215 (2005) (the Court declined to apply an "adverse presumption" where records have been lost or destroyed while in Government control which would have required VA to disprove a claimant's allegation of injury or disease in service in these particular cases). At a hearing in June 2010 the Veteran reported that he received mental health treatment from Dr. S. He stated that he was a psychiatrist and that he was deceased. The Veteran did not know of any way to obtain records from Dr. S. as nobody took over his office and he was not associated with any hospital. The Veteran reported that he was taking medication for his mental health and that this medication was prescribed by a private Dr. D. who was noted to be a counselor. The Veteran indicated that he would submit a release. The Veteran was afforded a VA medical examination in August 2010. The Veteran reported that he was a truck driver in service. He reported combat experience of 17 months. He indicated that he was shot at a couple of times while serving in Korea. After examination the Veteran was not diagnosed with any psychiatric disorder. It was noted that the Veteran has no symptoms of PTSD and has problems dealing with back pain and cancer not related to service. The examiner commented that the Veteran had no classical symptoms of PTSD and was never involved in treatment for PTSD or any other emotional problem. A list of the Unit Honors of the 44th Engineer Battalion have been associated with the claims file. Entitlement to service connection for PTSD is not warranted. Review of the claims file does not reveal any diagnosis for any psychiatric disorder. Upon examination in August 2010 the Veteran was not found to have any psychiatric disorder and it was noted that the Veteran did not have the classic symptoms of PTSD. Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Therefore, as the Veteran does not have a diagnosis of PTSD or any other psychiatric disorder during any period on appeal, entitlement to service connection for PTSD is denied. ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is denied. REMAND The Veteran seeks entitlement to service connection for degenerative arthritis of the thoracolumbar spine. Review of the claims file reveals that in October 2010 the RO requested treatment records regarding the Veteran from Dr. J.B. dated from 1984 to 1990. Subsequently, in January 2013 additional treatment records from Dr. J.B. were obtained; however, they indicate that the time period provided was October 2008 to the present. In addition, the Veteran has reported receiving treatment for his back at McLaren Hospital. However, records regarding this treatment have not been associated with the claims file. VA is required to make reasonable efforts to help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody. See 38 U.S.C.A. § 5103A(b)(1); 38 C.F.R. § 3.159(c)(1). As such, additional attempts must be made to obtain treatment records from Dr. J.B. and McLaren Hospital. The Veteran has competently reported that he experienced back pain while in service due to his service as a truck driver. The Veteran has competently reported that he sought treatment for his back shortly after separation from service. Post service treatment records reveal that the Veteran has been found to have arthritis of the lumbar spine and has been noted to have mild degenerative changes. As the Veteran has competently reported that his back pain began in service, as there is an indication that the Veteran was treated for a back disorder shortly after service, and as the Veteran is currently diagnosed with a low back disorder, the Board finds it necessary to afford the Veteran a VA medical examination regarding the etiology of his current low back disorder. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. After obtaining any necessary authorization from the Veteran, request complete treatment records pertaining to the Veteran from Dr. J.B., including those records dated from 1984 to 1990, and from McLaren Hospital. 2. Thereafter, arrange for the Veteran to undergo an appropriate VA examination to determine the nature, extent, onset and etiology of any low back disorder found to be present. The claims folder should be made available to and reviewed by the examiner. All indicated studies should be performed, and all findings should be reported in detail. The examiner should comment on the Veteran's report regarding the onset and continuity of symptomatology and the service treatment records, and opine as to whether it is at least as likely as not (a 50 percent or greater probability) that any low back disorder found to be present is related to or had its onset during service. The rationale for all opinions expressed should be provided in a report. 8. Thereafter, readjudicate the Veteran's claims. If any benefit sought on appeal is not granted, issue the Veteran and his representative a supplemental statement of the case and provide an opportunity to respond. The appellant 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). ______________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs