Citation Nr: 1334807 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 10-15 674 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, claimed as post traumatic stress disorder (PTSD). ATTORNEY FOR THE BOARD Bonnie Yoon, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1980 to January 1982. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California which denied service connection for posttraumatic stress disorder (PTSD). Because the Veteran resides in Alabama, jurisdiction rests with the RO in Montgomery, Alabama, from which the Veteran's appeal was certified. The Board notes that in February 2013, the RO had attempted to mail the Veteran a copy of a supplemental statement of the case (SSOC) to the Veteran's address then of record. The mail was returned as undeliverable. The claims file contains a March 2013 record from the VAMC Birmingham, which shows the Veteran having updated his address in June 2012. In addition, the file contains a letter from the Veteran's former attorney, Ronald C. Sykstus, which provided the Veteran's current address, the same address noted on the VAMC record. The RO then forwarded the SSOC to that new address in March 2013, and there is no notation in the file which indicates that it was returned as undeliverable. The Veteran requested a hearing, and the RO sent a letter dated July 2013 to the Veteran's new address stating that a video conference hearing was scheduled for August 27, 2013. However, the Veteran failed to report for the hearing, without explanation or any request to reschedule. There is nothing in the claims file which indicates that the notification letter was returned as undeliverable. The hearing request is therefore considered withdrawn. 38 C.F.R. § 20.704(d). Subsequently, an August 2013 correspondence from the Board, which was sent to the most recent address, was returned in September 2013 as undeliverable. There is nothing in the records to indicate that the Veteran has provided VA with a new address, and it bears emphasis that VA's duty to assist is not always a "one-way street." The appellant has an obligation to assist in the adjudication of his claim in notifying VA of any change in address. See Wood v Derwinski, 1 Vet. App, 190, 193 (1991). Accordingly, the Board will proceed with appellate review. The Board also notes that the Veteran's claim has been characterized as entitlement to service connection for PTSD. However, as will be discussed in further detail below, VA treatment records show the Veteran as having diagnoses of nonspecific psychosocial stress, depression, not otherwise specified (NOS) and bereavement. The United States Court of Appeals for Veterans Claims (Court) has held that the Veteran, as a layperson, is not competent to distinguish between competing psychiatric diagnoses, and so a claim of service connection for one is considered a claim for all. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Therefore, in accordance with Clemons, the Board has recharacterized the issue on appeal as entitlement to service connection for an acquired psychiatric disorder, claimed as PTSD. The Board has reviewed all the evidence in the Veteran's paper claims file and Virtual VA record, which does not contain any additional pertinent information or evidence. FINDINGS OF FACT 1. The record does not contain any corroborating evidence that a stressor occurred during service. 2. Without the presence of a verified stressor, there is no valid diagnosis of PTSD. 3. Currently diagnosed psychiatric disorders were not first manifested during active duty service; the preponderance of the evidence is against a finding that any acquired psychiatric disorder other than PTSD is otherwise related to service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, claimed as PTSD have not been met. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. A March 2009 letter, which was provided to the Veteran prior to the initial adjudication of his claim in August 2009, satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). This letter also notified the Veteran of the evidence that is necessary, or would be of assistance, in substantiating their claims, as well as regulations pertinent to the establishment of an effective date and of the disability rating if service connection is awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA has fulfilled its duty to assist the Veteran. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Veteran's service treatment records and VA medical treatment records have been obtained; he did not identify any private treatment records pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. As such, the Board is not on notice that relevant, outstanding Social Security disability records exist in this case, and the duty to assist does not require the Board to obtain Social Security records prior to adjudication of the claims at issue. See Golz v. Shinseki, 590 F.3d 1370 (Fed. Cir. 2009). Moreover, while VA has a duty to assist the claimant in developing evidence pertinent to his claim, the appellant also has a duty to assist and cooperate with VA in developing this evidence. 38 C.F.R. § 3.159(c). The duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190 (1991). As part of its duty to assist, VA requested in its March 2009 letter that the Veteran provide information regarding his stressors that were associated with his claim for service connection for PTSD. The Veteran responded to this letter by indicating that he had additional information to provide, but failed to provide the requested information regarding stressor incidents, which prevented VA from making a meaningful inquiry into verifying his stressor allegations. While a VA examination was not scheduled to obtain a medical opinion in this case, the Board finds that such examination and opinion is not necessary. Under the duty to assist, VA is obliged to provide an examination when the Veteran presents a claim for service connection and meets the threshold requirements that there was an event, injury, or disease in service; there is evidence of current disability or recurrent symptoms; and the evidence of record indicates that the claimed disability or symptoms may be associated with service. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006); Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The threshold for finding a link between current disability and service is low. McLendon v. Nicholson, 20 Vet. App. 79; Locklear v. Nicholson, 20 Vet. App. 410 (2006). As discussed below in greater detail, there is insufficient evidence in the record to allow a meaningful inquiry to verify the occurrence of a stressor during service. With regard to the Veteran's other diagnoses of record, there is no evidence to show that his current depression, bereavement, or any other acquired psychiatric disorder, other than PTSD is related to his active duty service. Accordingly, an examination is not required here, even under the low threshold of McLendon. There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). II. Legal Criteria Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In order to establish service connection the record must contain: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). To establish service connection for PTSD, it requires medical evidence establishing (1) a diagnosis of the condition in accordance with 38 C.F.R. § 4.125 under criteria from the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), (2) credible supporting evidence that a claimed an in-service stressor actually occurred, and (3) a link, established by medical evidence, between the current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. III. Analysis The Veteran contends he has PTSD due to his active service in Germany in the 1980's. While receiving VA treatment in April 2011, the Veteran stated that he stayed on the alert all the time and would see a lot of accidents. He added, "People got hurt, you think about yourself. It was cold laying out, your commanding officer hollering at you." In his March 2010 substantive appeal (VA Form 9), the Veteran stated "I had post traumatic distress caused by serving in Germany in the 80's." The Veteran's STR's show than on his entrance examination in January 1980, the Veteran stated he was in good health and denied any trouble sleeping, depression or worry, loss of memory or nervous trouble of any sort. A clinical evaluation found the Veteran to be normal in the psychiatric category. The STR's also do not reflect any treatment, complaint, or diagnosis related to any psychiatric symptoms or disorders during service. The Veteran's discharge physical in October 1981 also revealed a normal clinical evaluation, and the Veteran stated he was in "excellent health." The Veteran also denied any trouble sleeping, depression or worry, loss of memory or nervous trouble of any sort during separation. With regard to the requirement of a diagnosis for service connection, VA treatment records dated from 2009 through 2011 list the Veteran as having a diagnosis of PTSD in the active problems list. A May 2011 discharge summary from the VAMC Tuscaloosa indicates the Veteran with a diagnosis of PTSD. None of the records indicate that the diagnosis was rendered in accordance with the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), which is required by VA regulations. However, while the basis of the diagnosis is unknown, the Board need not address that issue at this time, because as discussed below, there is no evidence of a verified stressor required for service connection for PTSD. If the evidence in the record establishes that the veteran engaged in combat with the enemy and his claimed stressor is related to that combat, the veteran's lay testimony alone generally is sufficient to establish the occurrence of the claimed in-service stressor. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(f). If VA determines either that the Veteran did not engage in combat with the enemy or that the Veteran did engage in combat, but that the alleged stressor is not combat related, the Veteran's lay testimony, by itself, is not sufficient to establish the occurrence of the alleged stressor and his testimony must be corroborated by credible supporting evidence. See Cohen v. Brown, 10 Vet.App. 128 (1997); Moreau v. Brown, 9 Vet.App. 389 (1996). Here, the Veteran's certificate of release or discharge from active duty (DD 214) does not show that he received any combat awards or citations. There is nothing in the Veteran's records to indicate that the Veteran engaged in combat with the enemy, or suffered any combat-related incidents. In addition, none of the Veteran's statements relate to a fear of hostile military or terrorist action, or to combat, and so the presumptions which would permit acceptance of his claims on his testimony alone (absent clear and convincing contrary evidence) are not applicable. 38 U.S.C.A. § 1154; 38 C.F.R. § 3.304. Therefore, in order to establish occurrence of any alleged stressors, the Veteran's statements must be corroborated with credible supporting evidence. A Veteran's reports of the occurrence of alleged incidents are competent evidence of stressors. A Veteran is competent to report things he experiences or observes through his five senses. Layno v. Brown, 6 Vet. App. 465 (1994). In this case, the Veteran has competently identified stressful occurrences in service (seeing accidents, lying out in the cold, getting yelled at by commanding officers), and there is no basis to question the credibility of his statements. However, he has not identified these stressor allegations with the specific information necessary to allow for VA to conduct a meaningful inquiry in order to verify them. The Veteran has not provided any of the requested information as to approximate dates, places, assignments and specific details of the stressful incidents. The evidence of record includes an August 2009 memorandum in which VA determined that the information required to corroborate stressful events described by the Veteran was insufficient. The memorandum went on to state that no response was received following the sending of the duty to assist letter in March 2009, which requested that the Veteran provide specific information regarding his stressors. The RO also requested and reviewed the Veteran's personnel file. The personnel file showed duty assignments and effective dates, but were was negative for evidence of conceded stressors or that the Veteran engaged in combat with the enemy. The Board does note that the Veteran did respond to the duty to assist letter in March 2009, stating that he would send more information or evidence to VA to support his claim. However, no further evidence has been received from the Veteran. The record also does not contain any other evidence that would corroborate any stressful events occurring while the Veteran served in Germany. Without any credible supporting evidence, a stressor cannot be established in this case. Therefore, in the absence of a stressor, there can be no current valid diagnosis of PTSD. As the Veteran has not identified any specific stressors and the record is devoid of any corroborating evidence of any stressors, service connection for PTSD is not warranted. However, with regard to the other diagnosed conditions of record, a verified stressor is not required for service connection. For service connection to be established, evidence of a valid diagnosis and a showing that such diagnosis is as least as likely as not related to military service is required. With respect to the requirement for a diagnosis, VA treatment records reflect that during the course of this appeal the Veteran had been diagnosed with nonspecific psychosocial stress, depression, NOS and bereavement. Therefore, the remaining inquiry here is whether any acquired psychiatric disability other than PTSD, is related to the Veteran's military service or a service-connected disability. See 38 C.F.R. §§ 3.30, 3.310. As discussed above, the STR records are negative for any treatment, complaint, or diagnosis related to any psychiatric symptoms or disorders during service. Treatment records from the VAMC in Murfreesboro dated March 1990 show the Veteran has having a diagnosis of nonspecific psychosocial stress. The first evidence showing depression is in December 2008, in which a VAMC Birmingham substance abuse treatment record noted that the Veteran endorsed feeling depressed, but not anxious recently. The Board notes that no formal diagnosis of an anxiety disorder was made. The Veteran denied any psychiatric history. The records also noted that the Veteran's daughter had passed away from lupus 5 years ago. A July 2009 VA primary care intake note lists bereavement and depression in the active problems list. Also in July 2009, during a mental health intake consultation at the VAMC in Birmingham, the Veteran stated that since his granddaughter's death in April 2009 he had been unable to sleep. The Veteran denied further depressive symptomatology. In the mental status exam the Veteran was noted to be "depressed." However, depression was not formally diagnosed. VAMC Birmingham treatment records from 2009 through 2011 list bereavement and depression, NOS, under the active problems list. In April 2011, while receiving VA treatment in Tuscaloosa, the Veteran stated he had been dealing with stress, substance abuse and anger issues. He also stated that he had not been able to get over the deaths of his daughter and granddaughter, and never sought counseling, but had spoken to his pastor about it. He was diagnosed with bereavement (prolonged). Despite the presence of a diagnosis, there is no evidence that any acquired psychiatric disorder other than PTSD is the result of or related to the Veteran's active duty service. The Veteran's STR's are silent for any findings or treatment for psychological conditions or symptoms. The Board notes that the Veteran does not and has never alleged that any acquired psychiatric disorder, other than PTSD, is related his active duty service. There is, however, ample evidence that the Veteran was depressed due to the deaths of his daughter and granddaughter, which occurred after well after service, to include the Veteran's own statements and endorsement by treating physicians. Without evidence of in-service occurrence or a relationship to service, service connection for depression, or any other acquired psychiatric disorder other than PTSD is not warranted. In summary, as the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim for service connection for an acquired psychiatric disorder must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Service connection for an acquired psychiatric disorder, claimed as PTSD, is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs