Citation Nr: 1331040 Decision Date: 09/26/13 Archive Date: 09/30/13 DOCKET NO. 12-24 964 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD), general anxiety, mood disorder, addictive disorder and depressive disorder. 2. Entitlement to service connection for a left shoulder disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Curameng, Counsel INTRODUCTION The appellant had service in the Army National Guard with Active Duty for Training (ACDUTRA) from March 1998 to June 1998, and active duty from November 2003 to April 2005. He was ordered into active in support of Operation Iraqi Freedom. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The appellant's notice of disagreement was received in June 2012. A statement of the case was issued in July 2012, and a substantive appeal was received in September 2012. In a statement received in June 2011, the appellant's wife mentioned that they would like "to meet with a 'judge' face to face". However, to date, there have been no indications by the appellant or his representative that a hearing is desired. On substantive appeal, the appellant marked the appropriate box to indicate that he did not want a Board hearing. Although a claimant may describe only one particular mental disorder in a service connection claim, the claim should not necessarily be limited to that disorder. Rather, VA should consider the claim as a claim for any mental disability that may reasonably be encompassed by several factors including: the claimant's description of the claim, the symptoms the claimant describes, and information the claimant submits or VA develops and obtains in connection with the claim. The Court has indicated that a claimant does not file a claim to receive benefits only for a particular psychiatric diagnosis, but rather for the affliction his mental condition, however diagnosed, causes him. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Here, November 2010 VA treatment records show diagnoses of general anxiety, mood disorder and addictive disorder. A January 2011 VA treatment report shows depressive disorder, NOS (not otherwise specified). Thus, the appellant's service connection claim for PTSD has been redescribed as reflected on the first page of this decision. 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 a psychiatric disability, to include PTSD, general anxiety, mood disorder, addictive disorder and depressive disorder, 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. FINDING OF FACT A left shoulder disability was not manifested during the appellant's qualifying periods of service or for many years thereafter, nor is a left shoulder disability otherwise related to such service. CONCLUSION OF LAW A left shoulder disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Duty to Notify Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant pre-adjudication notice by a letter dated in October 2010. The notification substantially complied with the specificity requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006) identifying the five elements of a service connection claim; and Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence. The appellant has received all essential notice, has had a meaningful opportunity to participate in the development of his claims, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the appellant has not demonstrated any prejudice with regard to the content of the notice. See 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). See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Duty to Assist VA has obtained service and VA treatment records, reviewed the appellant's Virtual VA file, and assisted the appellant in obtaining evidence. In disability compensation (service connection) claims, VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Simply stated, the standards of McLendon are not met in this case as the evidence of records fails to indicate that left shoulder, had its onset during a qualified period of service or is otherwise related thereto. Thus, a VA examination is not warranted. All known and available records relevant to the issues on appeal have been obtained and associated with the appellant's claims file; and the appellant and his representative have not contended otherwise. VA has substantially complied with the notice and assistance requirements and the veteran is not prejudiced by a decision on the claim at this time. Analysis Service connection may be granted for disability due to disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1110. If a chronic disorder such as arthritis is manifest to a compensable degree within one year after separation from active service, the disorder may be presumed to have been incurred in service. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated while performing active duty for training (ACDUTRA) or for injury incurred in or aggravated while performing inactive duty for training (INACDUTRA). 38 U.S.C.A. §§ 101(24), 106, 1110. ACDUTRA includes full-time duty performed for training purposes by members of the National Guard of any state. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c) (3). However, National Guard duty is distinguishable from other Reserve service in that a member of the National Guard may be called to duty by the governor of their state. "[M]embers of the National Guard only serve the federal military when they are formally called into the military service of the United States [and a]t all other times, National Guard members serve solely as members of the State militia under the command of a state governor." Allen v. Nicholson, 21 Vet. App. 54, 57 (2007). Therefore, to have basic eligibility for Veterans benefits based on a period of duty as a member of a state National Guard, a National Guardsman must have been ordered into Federal service by the President of the United States, see 10 U.S.C.A. §12401, or must have performed "full-time duty" under the provisions of 32 U.S.C.A. §§ 316, 502, 503, 504, or 505. Id. In a claim received in September 2010, the appellant stated that his left shoulder disability began in 2001 at an annual National Guard training. The Board initially notes that the records from the period of ACDUTRA from March 1998 to June 1998 are negative for references to shoulder problems. Service treatment records show treatment for other disorders. A May 1998 service treatment record shows resolved viral syndrome. A June 1998 consultation sheet shows treatment for his right ankle. A June 1998 individual sick slip shows a follow up appointment for a smashed finger. There are no records of any injury in 2001. A National Guard medical history dated in November 2002 notes that the Veteran checked a box indicating a history of a painful shoulder, elbow or wrist, but no details were noted. Examination was normal. A July 2011 VA treatment record shows the Veteran's claim of shoulder pain that began in 2002, which the Board notes falls outside the period of qualified service for VA purposes. With respect to the period of active duty from November 2003 to April 2005, there are again no records of any shoulder problems, but there are records of other disorders. On a November 2003 initial medical review, he checked the appropriate response to deny medical/dental problems; but, did check the appropriate response to confirm he had been treated by a doctor since his last periodic physical examination. Upon clarification, he stated he was treated for food poisoning. In November 2003, he was seen for cough, sore throat, body aches, etc. In December 2003, he was seen for complaints of cough, headache and diarrhea. In January 2004, he was seen for burning his right hand. In an April 2004 health assessment, the Veteran circled the appropriate response to deny a past/current history of a dislocated joint, which included the shoulder. However, he did note that he had heat exhaustion. On a March 2005 report of medical assessment, the appellant marked the appropriate boxes to deny any illnesses/injuries since his last medical assessment/physical examination that caused him to miss duty for longer than three days, any injury/illness while on active duty for which he did not seek medical care and any intention to seek VA disability benefits. The Board notes, however, that a post service National Guard Report of Medical History dated in November 2006 shows that the appellant marked the appropriate circle to indicate painful shoulder. Upon clarification, he stated that it was intermittent and claimed it was bursitis. Unfortunately, this is apparently not a qualifying period of service for VA purposes. According to his Army National Guard Retirement Points History Statement, a military membership status identifier (MMSI) denotes "B1" for 2006, which indicates he was a National Guard Member at the time. There is no indication that he had active service, ACDUTRA, or INACDUTRA at that time. As noted previously, a VA examination is not warranted since there are no symptoms or treatment during qualifying periods of service. The appellant is certainly competent to report symptoms of left shoulder disability. However, when given the opportunity to report during qualifying periods of service, he failed to do so. During ACUDTRA and on active duty, he was seen for other disorders. He denied any injuries when asked on reports of medical assessment. He further denied a past/current history of dislocated shoulder in an April 2004 health assessment, but did not hesitate to report heat exhaustion. If the Veteran had left shoulder disability during requisite service, one would have expected the Veteran to have complained or have sought treatment for it as he had for various other disorders. Post service treatment records from the VA dated in May 2011 and July 2011 show complaints of left shoulder pain. Even assuming for the sake of argument that the appellant did report while in active service, the Board notes further that the United States Court of Appeals for Veterans Claims (Court) holding that pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). While the Board acknowledges the appellant's belief that he has left shoulder disability related to service, the Board notes that he is not competent to render a medical nexus opinion. See Barr v. Nicholson, 21 Vet. App. 303 (2007). After thorough review of the evidence currently of record, the Board is led to the conclusion that there is not such a state of equipoise of the positive evidence with the negative evidence to permit a favorable determination in this case. 38 U.S.C.A. § 5107(b). The weight of the evidence is against the appellant's claim of service connection for a left shoulder disability. ORDER Entitlement to service connection for a left shoulder disability is denied. REMAND The Board also notes that the appellant has failed to appear for two VA examinations for his acquired psychiatric disability. However, as explained in substantive appeal received in September 2012, he did not have a means of transportation at the time. He reports that now that he has reconciled with his wife, he is able available for future VA examinations. In light of the appellant's assurances that he will appear, a VA psychiatric examination should be rescheduled. During the course of the appeal, the provisions of 38 C.F.R. § 3.304(f) pertaining to PTSD were amended. Specifically, an amendment to 38 C.F.R. § 3.304(f) effective from July 13, 2010. See 75 Fed. Reg. 39843 (July 13, 2010). This amendment eliminated the requirement for corroboration that the claimed in-service stressor occurred if a stressor claimed by the 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 had contracted confirms that the veteran's symptoms are related to the claimed stressor, provided that the claimed stressor is consistent with the places, types, and circumstances of the veteran's service. "[F]ear 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." 75 Fed. Reg. at 39852. The Board notes that his DD 214 provides that when he served in Kuwait and Iraq, he served in an imminent danger pay area from February 2004 to February 2005. Thus, the appellant may have stressors that relate to fear of hostile military activity. To date, the appellant has not provided any stressor information. In light of the remand reasons above, the appellant should be asked once again to provide details regarding any stressors and appropriate development should be undertaken. 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. The RO should furnish appropriate VCAA notice addressing the amendment to 38 C.F.R. § 3.304(f). 2. The RO should take appropriate action to request and verify stressors reported by the appellant. 3. The appellant should be scheduled for another VA examination (by a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA had contracted) to ascertain if he suffers from a psychiatric disability. It is imperative that the claims file be made available to and be reviewed by the examiner in connection with the examination. All appropriate psychological testing should be performed. The examiner should report all current psychiatric disabilities diagnosed on examination. After reviewing the claims file and examining the appellant, the examiner should respond to the following: a) Is a diagnosis of PTSD warranted? b) If a claimed stressor(s) is corroborated and the examiner diagnosed PTSD, then the examiner should report whether the PTSD is related to the corroborated stressor(s) or to fear of hostile military action. c) If the appellant has a psychiatric disability other than PTSD, is it at least as likely as not (a 50% or higher degree of probability) that the current psychiatric disability is causally related to service? A rationale must be furnished for all opinions. 4. After completion of the above, the RO should then review the expanded record and adjudicate the issue of entitlement to service connection for a psychiatric disability, to include PTSD, general anxiety, mood disorder, addictive disorder and depressive disorder. If the benefit is not granted, the RO should issue an appropriate supplemental statement of the case, and give the appellant and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. 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