Citation Nr: 1334126 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 09-29 599 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD). 2. Entitlement to a statement of the case for issues decided in a November 2012 rating decision and appealed by Veteran's notice of disagreement. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Matthew Blackwelder, Counsel INTRODUCTION The Veteran had active service from November 1965 to November 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal of June 2008 and November 2012 rating actions. As explained in a September 2012 remand, the Board has reframed the issue of service connection for PTSD as entitlement to service connection for an acquired psychiatric disability to include PTSD, in accordance with the United States Court of Appeals for Veterans Claims' (Court) decision in Clemons v. Shinseki, 23 Vet. App. 1 (2009) (finding that a claim for benefits for one psychiatric disability also encompassed benefits based on other psychiatric diagnoses and should be considered by the Board to be within the scope of the filed claim). The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in June 2012. A copy of the transcript of that hearing is of record. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. The issue of entitlement to a statement of the case for issues decided in the November 2012 rating decision and appealed by the Veteran's notice of disagreement 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 1. The reported stressor upon which the Veteran's diagnosis of PTSD is based was the result of his own willful misconduct. 2. To the extent that an acquired psychiatric disability, other than PTSD, either began during or was otherwise caused by the Veteran's military service, it too is found to be the result of his own willful misconduct. CONCLUSION OF LAW Criteria for service connection for an acquired psychiatric disability, to include PTSD, have not been met. 38 U.S.C.A. §§ 105, 1110, 1154 (West 2002); 38 C.F.R. §§ 3.301, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Service Connection In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. However, direct service connection may be granted only when a disability was incurred in the line of duty, and was not the result of the Veteran's own willful misconduct, or, for claims filed after October 31, 1990, the result of his or her abuse of alcohol or drugs. 38 C.F.R. § 3.301. To establish service connection for PTSD the evidence must satisfy three basic elements. There must be 1) medical evidence diagnosing PTSD; 2) a link, established by medical evidence, between current symptoms of PTSD and an in-service stressor; and 3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). In July 2010 the regulations pertaining to service connection for PTSD were amended. Effective July 13, 2010, if a stressor claimed by a veteran is related to the veteran's "fear of hostile military or terrorist activity" and a VA or VA-contracted psychiatrist or psychologist confirms that the claimed stressor is adequate to support a diagnosis of PTSD, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor so long as there is not 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. See Stressor Determinations for Posttraumatic Stress Disorder, 75 Fed. Reg. 39,843, 39,852 (July 13, 2010) (codified at 38 C.F.R. § 3.304(f)(3)) and 75 Fed. Reg. 41,092 (July 14, 2010) (correcting the effective date of the rule published on July 13, 2010). For purposes of this section, "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, . . . , 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). These revised regulations are applicable to the Veteran's claim by virtue of their effective date. However, as will be discussed, the Veteran's PTSD was not diagnosed in service, and his reported stressor was not related to the fear of hostile military or terrorist activity. Instead, his stressor was related to a fight a fellow service member allegedly instigated; and the Federal Circuit Court of Appeals has explained that § 3.304(f)(3) only applies when a veteran's claimed in-service PTSD stressor relates to an event or circumstance that a veteran experienced that was perpetrated by a member of an enemy military or by a terrorist and not where a veteran alleges an in-service assault by a fellow service member. See Hall v. Shinseki, 717 F.3d 1369 (Fed. Cir. 2013). As such, § 3.304(f)(3) is not applicable to this case. Additionally, as will be discussed, the Veteran has been diagnosed with an acquired psychiatric disability, to include PTSD, which is not a "chronic disease" listed under 38 C.F.R. § 3.309(a), therefore 38 C.F.R. § 3.303(b) does not apply. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran has not been diagnosed with a psychoses at any time. In this case, the Veteran seeks service connection for PTSD. VA treatment records consistently show the Veteran to be diagnosed with PTSD (with the exception of a single record which suggests that the Veteran's symptoms did not meet all of the DSM-IV criteria), and he continues to receive treatment for PTSD from VA. As such, for the purpose of this decision, the Board will accept that the Veteran has PTSD. As noted, service connection for PTSD, in addition to a current diagnosis, requires credible supporting evidence that the claimed in-service stressor underlying the diagnosis occurred; and, if there is evidence that it did occur, the stressor must be shown to have caused the PTSD. Here, the Veteran has generally contended that his PTSD is the result of an event that occurred while he was stationed in Germany when an associate he was with allegedly stabbed a German civilian with a broken bottle. The Veteran described this event in detail both in an October 2007 stressor statement and again in oral testimony at a Board hearing in 2012. The Veteran has also periodically referenced an alleged incident of racial discrimination in service as causing his PTSD, but this potential stressor will be addressed further down in the decision. The Veteran's service personnel records and service treatment records were both obtained. The service personnel records show that the Veteran was stationed in Germany from June 1966 until November 1967. His DD-214 shows that he lost 27 days under 10 U.S.C. 972 from July 21-August 16, 1967. A record of court-martial conviction shows that on June 24, 1967 the Veteran struck German Nationals and was drunk and disorderly. As a penalty for his actions, the Veteran was reduced in rank to private E1, confined for four months, and made to forfeit $40 per month for four months. The Veteran served less than a month of confinement, and following his release, he served another month in Germany, before being sent back to the United States and discharged a month later. The RO contacted that U.S. Army Crime Records Center at Fort Belvoir, seeking additional information about the incident and the Veteran's conviction, but was informed in March 2008 that the requested records were outside of the 40-year retention period, and thus no additional records were available. While it is regrettable that additional records are not available, and can not be obtained, it is nevertheless clear that an incident did occur while the Veteran was stationed in Germany, as his service personnel records confirm that he was arrested for striking German nationals and for being drunk and disorderly. Accordingly, the Board accepts that the Veteran was involved in a stressful incident during service. While the medical professionals who have treated the Veteran through the years for his PTSD have not explicitly stated that it is at least as likely as not (50 percent or greater) that the Veteran's PTSD was caused by this incident, the incident is frequently and consistently discussed as the root cause of his PTSD. In fact, the VA treatment records make it clear that this assault/fight is the primary event the Veteran reports as the cause of his PTSD. For example, in August 2011, a VA psychiatrist stated that it is not hard to determine the likelihood of the incident in Germany being related to the symptoms he has. As such, the Board is finds that the most probative evidence links the Veteran's PTSD to the incident which transpired while he was stationed in Germany. However, while the basic three criteria for service connection for PTSD have been met, VA regulations provide that direct service connection may only be granted when a disability was not the result of a veteran's own willful misconduct. As such, the Board must consider whether the Veteran's reported stressor constitutes an act willful misconduct, which would preclude a grant of service connection for any disability caused by such an incident. As noted, the Veteran's claim was filed a number of decades after this alleged incident and therefore any records of the investigation, beyond the Veteran's service personnel records, have been expunged. Nevertheless, the service personnel records do provide valuable insight into the incident and ultimately lead the Board to conclude that the Veteran's reported stressor is a byproduct of his willful misconduct. "Willful misconduct" is defined as "an act involving conscious wrongdoing or known prohibited action"; "[i]t involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences." 38 C.F.R. § 3.1(n)(1); see Forshey v. West, 12 Vet. App. 71, 73 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335 (Fed. Cir. 2002), rev'd on other grounds by Morgan v. Principi, 327 F.3d 1357 (Fed. Cir. 2003); Daniels v. Brown, 9 Vet. App. 348, 350-51 (1996). As noted, the Veteran has provided several accounts of the reported stressor: In October 2007, he submitted a stressor statement in which he indicated that on or about July 13, 1967 he was promoted to E5. He reported going out to celebrate with several roommates, and that while they were returning to the base, one of the soldiers he was with shattered a bottle of wine and assaulted an oncoming German man with the broken bottle. The Veteran asserted that he tried to stop the soldier without success, and he suggested that the German man ultimately died of the wounds inflicted by the U.S. soldier, although it does not appear that the Veteran has any actual knowledge of this man's fate. The Veteran reported fleeing the scene of the alleged crime, but being arrested that night and court martialed. The Veteran asserted that he was sentenced to four years, of which he served 27 days, before being released on good behavior. He stated that he began to have nightmares and suicidal ideation following this incident. At his Board hearing in June 2012, the Veteran again relayed the details of this incident. He stated that his three roommates went out to celebrate his promotion. He asserted that the roommates got drunk and disorderly, but he denied drinking any alcohol that night. The Veteran asserted that on the way back to base, one of the roommates decided that he was going to cut a German man's throat that was coming their way, so he broke his bottle on the curb and put it behind him. The Veteran testified that he tried to dissuade the roommate, but was unsuccessful, and the roommate allegedly attacked the passer by. The Veteran reported that they fled, not knowing what else to do, but were arrested that night and given a General Court-Martial. The Veteran indicated that he was sentenced to four months for which he did 22 days before getting out on good behavior and getting honorably discharged. He reported that the other three were sentenced between four years and life in prison. The Veteran recalled arguing that he did not participate in the incident, but being told by the judge at the court-martial that he was there, so they had to do something. As a result of that experience, the Veteran again asserted that he began to have nightmares. The Veteran has also similarly described this incident to medical professionals on a number of occasions. The one consistent element in the Veteran's accounts is that he has consistently minimized his involvement in this incident and attempted to construe himself as a victim and not as a perpetrator. For example, he alleged that he was not drinking that night, and that he tried to stop the soldier, but was unable to. Such details, if believed, would in fact minimize the Veteran's involvement. However, the record of conviction, unfortunately, paints a very different picture: Specifically, it is noted that: the Veteran did strike German Nationals, and that he was drunk and disorderly. Such a statement suggests that it was not an isolated incident involving a single German citizen, as the conviction report uses the plural "Nationals" rather than the singular national. This record also suggests that the Veteran was directly involved in the action, as it states that the "Veteran did strike". It does not suggest that the Veteran was merely an accomplice of, or an associate to, the perpetrator, as the Veteran would have the Board believe. Additionally, the record notes that the Veteran was drunk at the time in direct opposition to his current contention. At this juncture, the Board, as finder of fact, must determine both the weight and credibility of all the evidence of record. This is the Board's charge. To this end, equal weight is not accorded to each piece of evidence contained in a record; and every item is not considered to have the same probative value. Rather, the Board must account for the evidence which it finds to be persuasive or unpersuasive, analyze the credibility and probative value of all material evidence submitted by and on behalf of a claimant, and provide the reasons for its rejection of any such evidence. See Struck v. Brown, 9 Vet. App. 145, 152 (1996). In weighing credibility of evidence, the Board may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). Here, the contemporaneous evidence, generated following the Court Martial proceedings, provides clear information about the incident that took place in June 1967, more than 40 years ago. This information is found to be highly probative and entitled to great weight as it was generated following proceedings which led to a conviction for the Veteran's transgressions. The Veteran's accounts are very different, but they were generated years later and in connection with a claim for VA benefits, as such, they are found to be less probative. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (noting that contemporaneous evidence has greater probative value than history as reported by a veteran); Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (a pecuniary interest is recognized as a factor which may affect the credibility of a claimant's statements). The Board acknowledges that lay testimony, such as that provided by the Veteran, is considered to be competent to establish details that are capable of lay observation, and may provide sufficient support for a claim of service connection. Layno v. Brown, 6 Vet. App. 465, 469 (1994). As such, the Veteran is considered to be competent to report that he was involved in an incident in Germany, and even to recall the details as he remembers them. However, in such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). In this case, the Veteran is attempting to recall events which occurred more than forty years earlier. Yet, he has been described as a poor historian, such as at a September 2004 private treatment session, and he has often reported conflicting details about the incident. For example, the Veteran has on several occasions confused the length of his sentence in service. In his October 2007 stressor statement, the Veteran asserted that he was sentenced to four years; and after the RO clarified in its rating decision that he had actually been sentenced to four months, the Veteran made another mistake on his assertion, alleging in a September 2008 statement that the RO had mistakenly reported that he had been sentenced to four months, when he was actually sentenced for four years. However, as noted, the Veteran's personnel records clearly show a four month conviction. This type of mistake appears to be inadvertent (the Board can see no reason the Veteran would lie about a longer prison sentence), but indicates the Veteran is having problems recalling events from so many years ago. It is acknowledged that at his Board hearing, the Veteran correctly reported having been sentenced to four months; however, the repeated discrepancies in his testimony through the course of his appeal, beyond the above, undermine the overall probative value of his statements, as it evidences a diminished ability to correctly remember essential details of the event. The Veteran is simply an inaccurate historian of events from so long ago. The Board is not suggesting that this is an intentional attempt to mislead VA, only that the Veteran may not fully and accurately recall details of events which transpired more than four decades ago. However, because the Board, as finder of fact, is charged with considering which pieces of are most probative, the Board must assess the credibility of reports such as the Veteran's, particularly when they are directly contradicted by the contemporaneously generated records. Through the course of his appeal, the Veteran has also reported differing amounts of time (i.e. number of days) he was confined as a result of his Court Martial conviction. Again, the Board raises this point not to question the Veteran's integrity, but rather to point out the inherent difficulty in accurately remembering events which transpired many decades in the past. As described above, the Board has attributed greater weight to the Veteran's service personnel records in establishing the details of the June 1967 event. Given this conclusion, the question becomes whether the event which occurred in June 1967, and which has been accepted as the cause of the Veteran's PTSD, constitutes willful misconduct on the Veteran's part such that he would be precluded from service connection? For the following reasons, the Board finds that it does. From the service personnel records, it is clear that the Veteran committed a significant offense. Returning to the penalties that were conveyed, he was reduced in rank from E5 to E1, confined for four months, and made to forfeit $40 per month for four months. These are significant penalties which convey the seriousness of the incident and the Veteran's actions. It is true that the Veteran only served 27 days as a result of his commendable good behavior. However, this does not change the fact that the conduct that the Veteran's was convicted, and was imprisoned for, led to his being diagnosed with PTSD. Willful misconduct means an act involving conscious wrongdoing or known prohibited action. It involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. 38 C.F.R. § 3.1(n)(1). Mere technical violations of police regulations or ordinances will not per se constitute willful misconduct, and willful misconduct will not be determinative unless it is the proximate cause of injury. 38 C.F.R. § 3.1(n)(2), (3). Here, there is little doubt that the Veteran's actions were a conscious decision, as he was charged with striking German nationals, an affirmative action. Moreover, the fact that the Veteran was convicted suggests that an affirmative defense, such as, for example, self defense, was not appropriate or not accepted by the trier of fact. Additionally, it is clear that the Veteran was aware of the wrongdoing and probable consequences, as he reported fleeing the scene (another wrongful act). If the Veteran was not consciously aware of his wrongdoing, there would have been no reason to flee the scene. If a claim is denied solely on the basis of willful misconduct, it must be established that the denial of the claim was justified by a preponderance of the evidence. 38 U.S.C.A. § 105(a); Smith v. Derwinski, 2 Vet. App. 241, 244 (1992). Here, the record of conviction leaves little doubt as to the nature of the Veteran's transgressions. He was convicted of committing a crime that was significant enough to warrant a four month prison sentence and significant loss of rank. This evidence is found to be highly probative, and entitled to great weight, as it was recorded contemporaneously with the Veteran's service and is the summary of a Court Martial proceeding. Because this incident was the result of willful misconduct, it cannot serve as the basis for service connection. As noted, the Veteran has also on occasion asserted that his depression and/or PTSD are the result of being asked to leave a segregated restaurant in Mississippi while in service. However, such an incident has not been corroborated by any additional evidence, and a Veteran's testimony alone cannot establish the occurrence of a non-combat stressor. See Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). Here, while medical professionals have on several occasions recorded the Veteran's allegation of a racial incident, this fact alone cannot corroborate the stressor. See Moreau v. Brown, 9 Vet. App. 389, 395-96 (1996) (an opinion by a medical health professional based on post-service examination of the Veteran cannot be used to establish the occurrence of a stressor). Additionally, while the Veteran has on rare occasion described this alleged incident to mental health professionals, no medical professional appears to have even suggested that a current psychiatric disability was caused by an incident of discrimination. As such, the Board does not find this incident to be corroborated, and even if it was, there is no medical suggestion that it caused a psychiatric disability. The Board finds that the best evidence in this case clear indicates that if the Veteran does have PTSD, it is the result of one stressor and one stressor alone (the stressor the Board cannot use, but law, to grant service connection for PTSD). Evidence to the contrary is clearly outweighed by the evidence that supports this finding. The Board cannot grant service connection for PTSD based on an act of willful misconduct. To the extent that the Veteran believes that his depression is the result of his military service, the service treatment records are void of any psychiatric complaints or treatment. On a medical history survey completed in conjunction with his separation physical in August 1967, the Veteran denied any depression or excessive worry, any frequent trouble sleeping, or any frequent or terrifying nightmares; and he was found to be psychiatrically normal at his separation physical. The Veteran has provided varying accounts of when he first began experiencing psychiatric symptoms or seeking psychiatric treatment. For example, at an August 2011 VA treatment session, the Veteran stated that he began having nightmares in 1981. On other occasions, the Veteran indicated that he began having nightmares following the event in Germany and his subsequent incarceration. However, the earliest treatment records of record showing problems with the Veteran's nerves appear in the mid-1980s. To the extent the Veteran's depression is related to the incident in Germany, this event cannot serve as the basis of a claim for VA benefits as it was the clear result of willful misconduct. In November 2009, the Veteran's depression was noted to be secondary to radiation treatment for prostate cancer, providing more evidence against this claim. As described, the evidence of record does not show that a psychiatric disability, unrelated to the incident in Germany, began during or was otherwise caused by the Veteran's military service; nor was a psychoses diagnosed within a year of the Veteran's separation. Therefore, the criteria for service connection have not been met, and the Veteran's claim is denied. II. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a claimant of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was provided by letters dated in May 2007 and July 2007, which informed the Veteran of all the elements required by the Pelegrini II Court as stated above. The letters also informed the Veteran how disability ratings and effective dates were established. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Private and VA treatment records have been obtained, as have service treatment records and service personnel records. Additionally, the Veteran testified at a hearing before the Board. The Veteran has reported seeking psychiatric treatment for a number of years. However, at his Board hearing, he acknowledged that several of the treating facilities had closed or had destroyed the records. The Board has obtained, or at least sought to obtain, all identified records which had not been described as unavailable by the Veteran. Generally, VA has a duty to attempt to obtain SSA records when it has actual notice that the Veteran is in receipt of SSA disability benefits. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992). In Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2009), however, the Federal Circuit acknowledged that VA's duty to assist was limited to obtaining relevant SSA records. The Federal Circuit rejected the appellant's argument in Golz that SSA records are always relevant and VA always is required to obtain them. The Federal Circuit then defined relevant records as "those records that relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate the Veteran's claim." Id. at 1321 (emphasis added). The Federal Circuit also stated, "[n]ot all medical records for a Veteran will have a reasonable possibility of aiding in the substantiation of a VA disability claim." Id. The Federal Circuit concluded in Golz, "[t]here must be specific reason to believe these records may give rise to pertinent information to conclude that they are relevant." Id. at 1323. In the September 2012 Board remand, one of the instructions was to obtain the underlying decision for the grant of SSA benefits. It appears that on remand, the Agency of Original Jurisdiction (AOJ) did at least fax a request for this document, although no response appears to have been received. However, having taken a second look at the evidence, the Board concludes that there is no reasonable possibility that the sought SSA decision would assist the Veteran in substantiating his claim, and therefore there is no prejudice for the Board to proceed. See Stegall v. West, 11 Vet. App. 268 (1998). First, the Veteran testified that he was receiving 100 percent disability from SSA on account of his back, not any psychiatric impairment, suggesting that any SSA decision would be irrelevant to this claim. At an August 2004 psychiatric evaluation, the Veteran even stated that he was seeking SSA for his back, asthma, knees, trembles in his arm, and residuals of a cerebral vascular accident. He did not note any psychiatric problems. Secondly, as discussed above, the Veteran's claim is being denied, because the stressor upon which his PTSD diagnosis is based was the result of willful misconduct in the 1960's. At the time of the Board's remand, a determination had not yet been made as to whether the incident in service constituted willful misconduct, as such, it was felt that the SSA decision should be obtained. However, because it is now concluded that this incident, which forms the basis for the Veteran's currently diagnosed psychiatric impairment, is the result of willful misconduct, nothing in the SSA decision could possibly change this determination. The Board bases this determination on the fact that the entirety of the SSA records underlying the SSA determination have been obtained, but fail to provide any additional insight into the event in Germany. Thus, if the records fail to provide additional insight, there is no reasonable possibility that an SSA decision based on those records could. As such, a remand is not necessary to seek such a document. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). The Board avoids remands that will not provide a basis to grant the claim. This is one of those limited situations in which the evidence is absolutely clear that records from SSA will not provide a basis to grant this claim. In this regard, the Veteran's own statements support such a finding. There is no ambiguity. If the Board believed there was any basis that SSA records would provide a basis to grant this claim, based on the facts of this case, and in light of the Veteran's statements, the case would be remanded. As such, because there was at least substantial compliance with the Board's remand instructions, there is no prejudice for the Board to proceed. See Stegall v. West, 11 Vet. App. 268 (1998). While a VA medical opinion was not provided in this case, the Federal Circuit Court of Appeals (Federal Circuit) has recognized that there is not a duty to provide an examination in every case. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Rather, the Secretary's obligation under 38 U.S.C. § 5103A(d) to provide the Veteran with a medical examination or to obtain a medical opinion is not triggered unless there is 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. See McLendon v. Nicholson, 20 Vet. App.79, 81 (2006). In this case, the incident which has consistently been found to have caused the Veteran's PTSD has been found to be the result of willful misconduct and therefore, it cannot provide the basis for service connection. Given this conclusion, the record does not establish a corroborated stressor which would support the grant of service connection, and therefore a remand to obtain a medical opinion is not necessary. There is also no allegation aside from the Veteran's assertions that he has an acquired psychiatric disability, other than PTSD, as a result of his military service. As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER Service connection for an acquired psychiatric disability, to include PTSD, is denied. REMAND In order to appeal a RO rating decision to the Board, certain procedural steps must be followed to grant the Board jurisdiction to review the case. First, once a rating decision issues, the Veteran or his representative must file a timely notice of disagreement; so long as the issues being appealed are clear, the AOJ by law must then issue a statement of the case; finally, to convey jurisdiction to hear the case on the Board, the veteran must file a timely, substantive appeal. 38 C.F.R. §§ 19.26, 20.200, 20.201, 20.302(a). In a November 2012 rating decision, the RO denied the Veteran's claim that new and material evidence had been presented to reopen a claim of entitlement to service connection for lower back pain with cervical radiculopathy and his claims for service connection for tinnitus and erectile dysfunction. In a July 2013 letter posted to the Veteran's Virtual VA page, the RO indicated that it had received the Veteran's written notice of disagreement with the November 21, 2012 decision. Unfortunately, a review of both the virtual and physical claims files did not locate the actual notice of disagreement, and, as such, it is unclear to the Board which issue or issues the Veteran has sought to appeal. However, what is clear from this letter that the Veteran did, in fact, file a notice of disagreement. Unfortunately, a review of both the virtual file and the paper claims file does not show that a statement of the case has been issued; and it is therefore proper to remand this claim to ensure that the Veteran is provided with a statement of the case. Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). However, the issue or issues listed in the notice of disagreement will be returned to the Board after issuance of the statement of the case only if perfected by the filing of a timely substantive appeal. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). Therefore, this issue is remanded to the RO for the following action: The RO should consider the issue(s) listed in the Veteran's notice of disagreement (NOD) with the November 2012 rating decision (the Veteran may wish to resubmit this NOD to the RO to help with this effort, if needed); if the benefits sought cannot be granted, the RO should issue a statement of the case (SOC) in accordance with applicable law and regulations, assuming a SOC has not been issued. The Veteran and his representative should be informed of the period of time within which he must file a substantive appeal to perfect her appeal to the Board concerning this issue. If a timely substantive appeal is not filed, the claim should not be certified to the Board. The Veteran has the right to submit additional evidence and argument on the matter 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. 2013). ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs