Citation Nr: 1334920 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 07-35 578 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty from October 1968 to June 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. This case was previously before the Board in June 2011 and September 2012, at which time the Board remanded it for further development. In pertinent part, the Board directed that the Veteran be provided additional notification requesting further details regarding the purported stressors which he contends caused his PTSD, and a VA medical examination to address the nature and etiology of his PTSD. The record reflects he was provided with additional notification via letters dated in September 2011, October 2011, October 2012, and November 2012. He was also accorded a VA medical examination regarding this case in August 2011. For the reasons stated in greater detail below, the Board finds that the Veteran has received adequate notification in this case, and that all reasonable development has been completed to the extent permitted by the cooperation of the Veteran. All other development directed by the prior remands in this case appears to have been substantially accomplished. Accordingly, a new remand is not required in order to comply with the holding of Stegall v. West, 11 Vet. App. 268 (1998). See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (Remand not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). FINDINGS OF FACT 1. Although the Veteran has been diagnosed with PTSD, there is no credible corroborating evidence regarding the purported stressors upon which that diagnosis was based. 2. The preponderance of the competent medical and other evidence of record is against finding the Veteran has an acquired psychiatric disorder other than PTSD as a result of his active service CONCLUSION OF LAW The criteria for a grant of service connection for an acquired psychiatric disorder, to include PTSD, are not met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Preliminary Matters The Board notes at the outset that, in accord with the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012). The United States Court of Appeals for Veterans Claims (Court) has indicated that VCAA notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA must provide a claimant VCAA notice before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction. Dingess/Hartman, supra; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran was sent pre-adjudication notice via letters dated in March and May 2006, both of which were clearly prior to the April 2007 rating decision that is the subject of this appeal. He was also sent additional notification via letters dated in September 2011, October 2011, October 2012, and November 2012. This case was last adjudicated below via a February 2013 Supplemental Statement of the Case which "cures" the timing problem associated with inadequate notice or the lack of notice prior to the initial adjudication. Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (Mayfield III), citing Mayfield II, 444 F.3d at 1333-34. The aforementioned VCAA letters informed the Veteran of what was necessary to substantiate his current appellate claim, what information and evidence he must submit, what information and evidence will be obtained by VA, as well as the information and evidence used by VA to determine disability rating(s) and effective date(s) should service connection be established. In addition, the Veteran was requested to provide details regarding the purported stressors upon which his claim of PTSD was based. The Board acknowledges that it was determined in the September 2012 remand that the 2011 letters were insufficient in that they requested additional information regarding combat-related stressors and there was no evidence he was provided with the information to verify noncombat stressors. However, such information was provided by the October 2012 letter which only requested additional details regarding stressors in general, and did not specify combat or noncombat stressors. Further, the November 2012 letter requested additional information regarding the purported stressor of a soldier pinned under a heavy vehicle as directed by the Board's remand. In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his current appellate claim and the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence. Accordingly, there is no further duty to notify. In any event, the Veteran has not demonstrated any prejudice with regard to the content or timing of any 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). In addition, the Board finds that the duty to assist a claimant in the development of his or her case has been satisfied. The Veteran's service treatment and personnel records are on file, as are various post-service medical records. Further, the Veteran has had the opportunity to present evidence and argument in support of his claims, and nothing indicates he has identified the existence of any relevant evidence that has not been obtained or requested. Moreover, as described in greater detail below, he was accorded a VA medical examination in August 2011, which diagnosed PTSD and attributed that diagnosis to two of his purported stressors. Therefore, resolution of this case depends upon whether there is credible corroborating evidence of these purported stressors. In other words, no additional medical examination or opinion is necessary for resolution of this case. A December 2006 Formal Finding concluded that the information provided by the Veteran was insufficient to send to the U.S. Army and Joint Services Records Research Center (JSRRC) and/or insufficient to allow for meaningful research of Marine Corps or National Archives and Records Administration (NARA) records. Further, the Veteran has not provided any additional details regarding his purported stressors even though such information was specifically requested by the 2011 and 2012 VCAA letters. The Court has held that the duty to assist is not a "one-way street," and that if a veteran wants help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Consequently, the Board finds that the duty to assist has been satisfied in this case to the extent permitted by the cooperation of the Veteran. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (The Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (Noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). 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 v. Nicholson, 492 F.3d 1372, 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Legal Criteria and Analysis Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Service connection may also be established for certain chronic diseases such as psychoses that are present to a compensable degree within the first post-service year. See 38 C.F.R. §§ 3.307, 3.309(a). Further, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). In addition to the general rules of service connection noted above, service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); 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). Further, 38 C.F.R. § 4.125(a) requires that diagnoses of mental disorders conform to the fourth edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) and that if a diagnosis is not supported by the findings on the examination report, the rating agency shall return the report to the examiner to substantiate the diagnosis. Initially, the Board observes that there was no indication of any psychiatric disorder at the time of the Veteran's entry into active service, to include October 1968 enlistment examination and concurrent Report of Medical History. Service treatment records dated in January 1970 do include an impression of depression. However, his complaints at time were for nausea and vomiting; as well as peri-umbilical pain at night when he tried to sleep. He experienced similar symptoms in February 1969, at which time it was attributed to gastroenteritis. Moreover, there was no subsequent entries indicative of a psychiatric disorder, and his psychiatric system was clinically evaluated as normal on his June 1970 expiration of term of service examination. The Veteran also checked boxes on a concurrent Report of Medical History to reflect he had not experienced depression or excessive worry, loss of memory or amnesia, or nervous trouble of any sort. In short, there is competent medical evidence that the Veteran did not have an acquired psychiatric disorder at the time of his separation from service, and he affirmatively indicated that he did not have any such symptomatology at that time. The Board further notes that there is no competent medical evidence of an acquired psychiatric disorder until years after separation from service. The Court has indicated that the normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (Affirming Board where it found that veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability.). Moreover, as the current psychiatric disorder was first shown years after service, he is not entitled to a grant of service connection of a presumptive basis for a psychosis present to a compensable degree within the first post-service year. See 38 C.F.R. §§ 3.307, 3.309(a). The Board also notes that the Veteran has not identified any basis to relate the etiology of his current psychiatric disorder to service other than the purported stressors that were the basis for his diagnosed PTSD. Moreover, while he has reported symptoms of depression, these and all other psychiatric symptoms have been attributed to the PTSD diagnosis, to include the August 2011 VA examination. In view of the foregoing, the Board finds that the preponderance of the competent medical and other evidence of record is against a finding the Veteran has an acquired psychiatric disorder other than PTSD as a result of his active service. With respect to the diagnosis of PTSD, the Veteran has identified various stressors which he contends were the basis for this disability. For example, he identified hearing something had happened to his brother who was stationed in Vietnam while he was also on active duty. He also identified being under gunfire while on a delivery run to bring food, and indicated that this gunfire was from fellow soldiers because he was in the wrong area. He identified another stressor as occurring when a superior officer put a pistol to his head during an alert after the Veteran startled him while his base was mistakenly thought to be under attack. Finally, he identified a stressor of finding and being unable to assist another soldier pinned under a heavy vehicle by the side of a road. The August 2011 VA psychiatric examiner determined that the Veteran met the diagnostic criteria for a PTSD diagnosis based on two of his alleged stressors. Specifically, the diagnosis was based on the Veteran's alleged stressor of being unable to assist another soldier pinned under a heavy vehicle by the side of a road and also on the stressor of having his superior officer put a pistol to his head during an alert after the Veteran startled him while his base was mistakenly thought to be under attack. Accordingly, the resolution of this case depends upon whether the record supports a finding that these purported stressors actually occurred. In Zarycki v. Brown, 6 Vet. App. 91 (1993), the Court held that the presence of a recognizable stressor is the essential prerequisite to support the diagnosis of PTSD. The evidence necessary to establish the occurrence of a recognizable stressor during service varies depending on whether the veteran "engaged in combat with the enemy." West v. Brown, 7 Vet. App. 70, 76 (1994). The Board is required to "make specific findings of fact as to whether or not the claimed stressor is related to such combat." Zarycki, 6 Vet. App. at 97-98. A veteran's lay testimony, alone, is sufficient to verify a claimed in-service stressor if the claimed stressor is related to a veteran's personal episode of engagement in combat with the enemy; however, a veteran's lay testimony, alone, is not sufficient to establish that he or she engaged in personal combat with the enemy. That factor must be established by objective, competent, and factual evidence of record. VAOPGCPREC 12-99, p. 4 (October 18, 1999); Gaines v. West, 11 Vet. App. 353 (1998). The Board also notes that, effective July 13, 2010, VA amended its adjudication regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the required in-service stressor. Specifically, the final rule amends 38 C.F.R. § 3.304(f) by redesignating current paragraphs (f)(3) and (f)(4) as paragraphs (f)(4) and (f)(5), respectively, and by adding a new paragraph (f)(3) that reads as follows: (f)(3) 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. In this case, however, the record does not reflect the Veteran personally engaged in combat or that his stressors are related to "fear of hostile military or terrorist activity" as defined by VA regulations. The stressors identified by the Veteran, as well as by the August 2011 VA examiner, do not involve personal combat with the enemy nor fear of enemy or terrorist activity. One stressor involved a motor vehicle accident, while the other involved a superior officer. The Board further notes that nothing in the record indicates the Veteran engaged in combat during his active service. He received no medals or citations denoting combat service, and such service is inconsistent with his military occupational specialty (MOS) of being a cook. Although his DD Form 214 reflects he received the Vietnam Service Medal and Vietnam Campaign Medal, his other service personnel records reflect he was stationed in Thailand during his active service and was not actually stationed in the Republic of Vietnam. The Board also notes that the stressors identified by the Veteran are not consistent with the places, types, and circumstances of his active service. Granted, motor vehicle accidents can and do happen on a daily basis. Nevertheless, such incidents are generally unplanned and unexpected by those involved, and certainly not something that is expected to be part of one's normal military activities and/or assigned duties. Similarly, having one's superior officer pull a gun on them is not something that is expected to be part of one's normal military activities and/or assigned duties. Thus, these events would not be reasonably contemplated as among those considered 'consistent with the places, types and circumstances of the Veteran's service.' In view of the foregoing, the Board finds that the Veteran is not entitled to the relaxed standard for verifying stressors based upon either combat or "fear of hostile military or terrorist activity." Therefore, his lay statements alone are not sufficient to verify his purported stressors. A thorough review of the other evidence of record, to include the Veteran's service treatment and personnel records, does not corroborate the 2 stressors identified by the August 2011 VA examiner as supporting a diagnosis of PTSD, nor the other stressors identified by the Veteran. As already noted, a Formal Finding was made in December 2006 that the information provided by the Veteran was insufficient to send to the JSRRC and/or insufficient to allow for meaningful research of Marine Corps or NARA records. No additional details was provided by the Veteran following that determination even though more specific details were requested by the correspondence promulgated in 2011 and 2012. Although the Veteran submitted lay statements from various individuals which, in essence, attested to the change in his personality (i.e., development of symptomatology) none of these individuals were present at the time of the purported stressors in order to provide corroborating evidence. To the extent these statements support a current disability, the Board notes that this element of the claim is not in dispute. Based on the foregoing, the Board must find that even though the Veteran has been diagnosed with PTSD, there is no credible corroborating evidence regarding the purported stressors upon which that diagnosis was based nor are these stressors consistent with the circumstances, conditions, or hardships of his military service. In making this determination, the Board was cognizant of the holding of Pentecost v. Principi, 16 Vet. App. 124 (2002), wherein the Court reversed the Board's denial of a claim for service connection for PTSD on the basis of an unconfirmed in-service stressor. However, in Pentecost, the veteran submitted evidence that his unit was subjected to rocket attacks. The Court pointed out that corroboration of every detail of a stressor under such circumstances, such as the veteran's own personal involvement, is not necessary. See also Suozzi v. Brown, 10 Vet. App. 307 (1997). The facts in this case are easily distinguishable because the veteran has submitted no independent evidence of the occurrence of the claimed in-service stressors, to include to his entire unit. No other basis for establishing service connection for an acquired psychiatric disorder, to include PTSD, is demonstrated by the evidence of record. For the reasons stated above, the Board concludes that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder to include PTSD. As the preponderance of the evidence is against these claims, the benefit of the doubt doctrine is not for application in the instant case. See generally Gilbert, supra; see also Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Consequently, the benefit sought on appeal must be denied. ORDER Service connection for an acquired psychiatric disorder, to include PTSD, is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs