Citation Nr: 1335104	
Decision Date: 11/01/13    Archive Date: 11/13/13

DOCKET NO.  07-05 469	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to service connection for posttraumatic stress disorder (PTSD).

2.  Entitlement to service connection for an acquired psychiatric disability other than PTSD, to include a major depressive disorder.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant



ATTORNEY FOR THE BOARD

J. Chapman, Associate Counsel


INTRODUCTION

The Veteran served on active duty from September 1973 to October 1977.  

These matters are before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.  In July 2009, the Veteran testified at a hearing before the undersigned.  A transcript is associated with the claims file.

The claim of service connection for a psychiatric disability was developed and adjudicated as limited to the diagnosis of PTSD.  Because the record shows a psychiatric diagnosis other than PTSD, and in light of the intervening United States Court of Appeals for Veterans Claims (Court) decision in Clemons v. Shinseki, 23 Vet. App. 1 (2009), it has been recharacterized as stated on the preceding page.
The matter of service connection for an acquired psychiatric disability is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the appellant if further action on his part is required.


FINDING OF FACT

PTSD cannot be attributed to the Veteran's military service in the absence of independently verifiable inservice stressful experiences.



CONCLUSION OF LAW

PTSD was not incurred or aggravated during the Veteran's military service.  38 U.S.C.A. §§ 1110, 1154, 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.304(f) (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  See 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, 3.326(a) (2013).  

Under 38 U.S.C.A. § 5102 VA first has a duty to provide an appropriate claim form, instructions for completing it, and notice of information necessary to complete the claim if it is incomplete.  Second, under 38 U.S.C.A. § 5103(a), VA has a duty to notify the claimant of the information and evidence needed to substantiate and complete a claim, i.e., existence of a current disability, the degree of disability, and the effective date of any disability benefits.  The appellant must also be notified of what specific evidence he is to provide and what evidence VA will attempt to obtain.  Third, VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim.  This includes obtaining all relevant evidence adequately identified in the record and, in some cases, affording VA examinations.  38 U.S.C.A. § 5103A. 

In Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006), the Court observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (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.  See 38 U.S.C. § 5103(a).  

Initially, the Board finds that there is no issue as to whether the Veteran was provided an appropriate application form or issue as to whether the claimant has veteran status.  

Next, the Board finds that letters dated in July 2006, January 2010, May 2010, and August 2011 provided the Veteran with notice that fulfills the provisions of 38 U.S.C.A. § 5103(a) including notice of the laws and regulations governing disability ratings and effective dates as required by the Court in Dingess, supra.  While the Veteran may not have provided with adequate 38 U.S.C.A. § 5103(a) notice prior to the adjudication of the claim in the September 2006 rating decision, the Board finds that providing him with adequate notice in the above letters followed by a readjudication of the claim in the August 2011 supplemental statement of the case "cures" any 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.  Furthermore, the Board finds that even if VA failed to provide the Veteran with adequate 38 U.S.C.A. § 5103(a) notice that this notice problem does not constitute prejudicial error in this case because the record reflects that a reasonable person could be expected to understand what was needed to substantiate the claim after reading the above letters as well as the rating decision, the statement of the case, supplemental statements of the case, and Board remand.  See Shinseki v. Sanders, 129 S.Ct. 1696 (2009).  

In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) (2010) requires that the Veterans Law Judge (VLJ) who conducts a hearing fulfill two duties to comply with the above regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.   Here, during the July 2009 Board hearing, the Veteran was assisted at the hearing by an accredited representative and the representative and the Acting VLJ asked questions to ascertain the extent of any in-service event or injury and whether the Veteran's current disability is related to his service.  They also asked questions to draw out the current state of the Veteran's disability.  No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or the representative.  The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for service connection.  Therefore, the Board finds that, consistent with Bryant, the Acting VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2).

As to the duty to assist, the Board finds that VA has secured all available and identified pertinent in-service and post-service evidence including the Veteran's service treatment records and service personnel records as well as his post-service records including his records from the Dallas VA Medical Center.

The December 2009 Board remand directed that the Veteran's records on file with the Social Security Administration (SSA) as well as his VA vocational rehabilitation file be associated with the record on appeal.  However, in February 2010 the SSA notified VA that it did not have any records of the claimant and in July 2011 the Appeals Management Center (AMC) was notified that the appellant did not have a VA vocational rehabilitation file.  Moreover, the AMC notified the Veteran that these records were not available in a May 2010 letter and/or the August 2011 supplemental statement of the case.  Therefore, the Board finds another remand to request these records is not required.  See Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992) (the "'duty to assist' is not a license for a 'fishing expedition' to determine if there might be some unspecified information which could possibly support a claim . . . [and] this duty is limited to specifically identified documents that by their description would be facially relevant and material to the claim").  

Based on the information provided at his personal hearing, the Board remanded the appeal for further investigation to verify the Veteran's stressors.  Thereafter in March 2010 and again in May 2011, which second request noted that the Veteran's stressors occurred between February 1975 and March 1975 and not between February 1974 and March 1975 as mistakenly reported in the Board's remand, requests was made to the Joint Services Records Research Center (JSRRC) asking them to verify the stressor.  Specifically, they were asked to verify whether the Veteran participated in a search and rescue operation in which a family's third-foot vessel capsized and sank, resulting in the rescue of the mother and father, but the death of their three young daughters.  

Later in May 2011 JSRRC responded, stating "We also coordinated our research with the USCG Head Quarters, Buzzards Point, Washington, DC, the custodian of USCG station histories.  The HQ historian does not maintain the 1974 or 1975 history of the USCG Group Detroit, USCGS St Joseph, MI.  Also, the historian's search and rescue archivist does not document the [redacted]/[redacted] or similar family boat accident with casualties incident as described by Mr. [redacted]."  

Then, on July 22, 2011, the AMC sent an email to the National Archives, Great Lakes Region (Chicago) requesting that an attempt be made to verify the Veteran's claimed stressor event.  On July 25, 2011, a negative response was received, which indicated that logs for USCG Shore Stations at St. Joseph and Muskegon, Michigan were only kept for the years 1971 to 1973.  

On July 28, 2011, the AMC also noted that a thorough search of the internet was conducted; however, no documentation of the alleged incident was found.  Also on that date, a search of the online archives of the Herald Palladium newspaper in St. Joseph, Michigan was conducted for any documentation regarding a search and rescue operation off the shores of USCGS St. Joseph, Michigan sometime between February and March 1975.  Again, no documentation of the alleged incident was found.  It was further noted that the AMC contacted the local news Editor of the Herald Palladium in regard to searching any available hardcopy archives for documentation regarding this alleged event.  The Editor reported that he would check for any available information and report back.  On July 29, 2011, the AMC noted that it made a follow-up attempt at acquiring any information from the Editor; however, no response was received.    

Finally, AMC noted that the Veteran's personnel file was reviewed, which showed no indication of his involvement in any search and rescue operations in 1974 or 1975.

A formal finding of a lack of information required to corroborate stressors associated with a claim for service connection for PTSD was submitted into the record in August 2011.  The memorandum noted that "all further attempts to verify the veteran's alleged stressor would be futile."  

Given the above development, the Board finds that there has been substantial compliance with the Board's remand directions to the AMC regarding attempting to verify the Veteran's stressor.  See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order).

The RO did not arrange for a VA examination/opinion as to the PTSD claim decided herein.  However, the December 2009 Board remand directed that the RO/AMC obtain an examination only if it was able to verify the Veteran's stressor.  As the claimed stressor was unable to be verified, an examination was not scheduled.  Moreover, the Board finds that absent any credible evidence corroborating the Veteran was exposed to a stressor event in service, an examination to secure a medical nexus opinion is not necessary, as even the low standard in McLendon v. Nicholson, 20 Vet. App. 27 (2006), is not met.  See 38 C.F.R. § 3.159(c)(4); Duenas v. Principi, 18 Vet. App. 512, 516 (2004).  

In summary, the facts relevant to this appeal have been properly developed and there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103(a), 5103A or 38 C.F.R. § 3.159.  Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of the appeal.  See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993).  

In adjudicating the claim below, the Board has reviewed all of the evidence in the Veteran's claims file including those found in virtual VA.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all the evidence submitted by the Veteran or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

The Claim

The Veteran contends that he suffers from PTSD "due to the fact that while I would be on search and rescue operations, there are sometimes when the rescue would not go well."  He stated that he recalls searching for a small boat that was sinking and when trying to rescue the passengers, he saw three people drown.  He stated, "I still to this day can see their faces as they went under the water."  See February 2007 statement.

In a July 2009 Travel Board hearing, the Veteran provided further details about the stressor he claims caused his PTSD.  He testified that he witnessed and participated in failed rescue efforts while serving in the United States Coast Guard Station in St. Joseph, Michigan.  Specifically, the Veteran testified about a particular incident in which his search and rescue crew went out to rescue a family - parents and 3 children under the age of 10 - whose boat had capsized in a storm.  The Veteran stated that the parents were rescued, but that he was unable to rescue the children because the wet suit he was wearing would not let him swim down far enough beneath the water to retrieve them and he can still see their faces.  The Veteran stated that the incident happened in February or March of 1975 while he was stationed at the St. Joseph, Michigan, Coast Guard Station, a sub unit of the Muskegon, Michigan Group, and the family name of the children was "[redacted]" or "[redacted]."

Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309.  38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service.  38 C.F.R. § 3.303(d).  

In order to establish service connection for the claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999).  The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim."  See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).

As to claims of service connection for PTSD, controlling regulations provide that a grant of service connection for PTSD requires the following: (i) if the evidence establishes a diagnosis of PTSD during service and the claimed stressor is related to that service, in the absence of 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, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor; (ii) medical evidence diagnosing PTSD in accordance with 38 C.F.R. § 4.125(a); (iii) medical evidence establishing a link between current symptoms and an in-service stressor; and (iv) credible supporting evidence that the claimed in-service stressor occurred.  38 C.F.R. § 3.304(f).  The provisions of 38 C.F.R. § 4.125(a) require that a diagnosis of a mental disorder conform to the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th Edition (1994) (DSM IV).  

The Board notes that during the pendency of this appeal, 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.  More specifically, the revisions liberalized the standards for establishing the occurrence of in-stressors involving a "fear of hostile military or terrorist activity."  See 38 C.F.R. § 3.304(f)(3).  

Where it is determined that the Veteran was engaged in combat with the enemy and the claimed stressors are related to such combat, his lay testimony regarding the claimed stressors is accepted as conclusive as to their actual existence, absent clear and convincing evidence to the contrary.  Where, however, VA determines that the Veteran did not engage in combat with the enemy, or that he did engage in combat with the enemy but the claimed stressor is not related to such combat, lay testimony, by itself, will not be enough to establish the occurrence of the alleged stressor.  Instead, the record must contain evidence which corroborates the Veteran's testimony as to the occurrence of the claimed stressors.  38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. §§ 3.304(d), (f); West v. Brown, 7 Vet. App. 70, 76 (1994).

In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others.  Schoolman v. West, 12 Vet. App. 307, 310-11 (1999).  In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence.  Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007).  Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000).  In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so.  Evans v. West, 12 Vet. App. 22, 30 (1998).  

Initially, the Board will look to see if the record contains proof that the claimant is a combat veteran or his stressors involved fear of hostile military or terrorist activity because, as stated above, the provisions of 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(f), provide that the evidence of either negates the need to obtain objective evidence to verify the claimed stressor.  See Hayes v. Brown, 5 Vet. App. 60, 66 (1993).

However, the Veteran does not claim and the record does not show that that he engaged in combat with the enemy.  38 U.S.C.A. § 1154(b).  Likewise, the Veteran does not claim and the record does not show that any of his stressor is related to "ear of hostile military or terrorist activity.  38 C.F.R. § 3.304(f)(3).  Therefore, the Board finds that claimant is not a "combat Veteran" and 38 C.F.R. § 3.304(f)(3) does not apply to his claim.  Accordingly, the Board finds that his lay statements regarding the claimed stressor cannot alone be accepted as conclusive evidence as to the actual existence of his claimed stressors.  38 C.F.R. § 3.304(f).  The Board will next consider whether the claimed stressors are supported by credible evidence.  Id.  

In this regard, the Veteran's service personnel records confirm that he served with United States Coast Guard Station in St. Joseph, Michigan from November 1973 to November 1975.  His DD 214 also shows that he received the Small Boat Coxswain Pin.

However, VA has not been able to verify the claim regarding having been involved in a failed rescue attempt where three small children died.  Specifically, as discussed above, while the appeal was in remand status the AMC attempted to verify this stressor by contacting JSRRC, the National Archives, a search of the internet, and contacting the local news Editor of the Herald Palladium.  However, none of these sources were able to verify the stressor.  Therefore, the Board does not find this stressor is supported by credible evidence.

The Board recognizes that the Veteran's own personal participation need not be strictly corroborated.  See Suozzi v. Brown, 10 Vet. App. 307 (1997) (corroboration of every detail is not required to satisfy the § 3.304(f) requirement that there be credible supporting evidence that the claimed stressors actually occurred).  Nevertheless, despite exhaustive efforts by VA to confirm the Veteran's allegations as to his stressor, no evidence has been uncovered which corroborates the stressor.  Although some VA physicians have diagnosing PTSD, the Board may not grant service connection for PTSD in cases such as this without supporting evidence of the occurrence of any of the claimed in-service stressor.  Given the lack of supporting evidence required by the law, the Board finds that the evidence is against the Veteran's claim of service connection.  Therefore, entitlement to service connection for PTSD is denied.  

In reaching this decision, the Board considered the doctrine of reasonable doubt; however, as the most probative evidence of record is against the Veteran's claim, the doctrine is not for application.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 


ORDER

Entitlement to service connection for PTSD is denied. 


REMAND

As noted above, the Veteran's claim has only previously been considered as one for service connection for PTSD.  However, clinical evidence reflects a diagnosis of a major depressive disorder.  Moreover, as noted above, in Clemons, supra, the Court held that a Veteran's claim for PTSD was not limited only to this diagnosis, but rather included any mental disability that "reasonably be encompassed by several factors including: the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim."  Clemons, 23 Vet. App. at 5.  As the RO has not developed or adjudicated the matter of service connection for the Veteran's psychiatric disability other than PTSD, it would be premature for the Board to address such matter on the merits in the first instance.  Therefore, the Board has no option but to remand this issue for such action.  

In this regard, the record reveals that the Veteran receive ongoing treatment from the Dallas VA Medical Centers.  However, his post-2009 treatment records are not found in the claims file.  Therefore, while the appeal is in remand status, these records should be obtained and associated with the claims file.  See 38 U.S.C.A. § 5103A(b); Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA adjudicators are deemed to have constructive notice of VA treatment records).

Accordingly, this issue is REMANDED to the RO/AMC for the following actions:

1.  The RO/AMC should send the Veteran a letter providing him all VCAA-mandated notice as to his claim for acquired psychiatric disorder, other than PTSD, in accordance with Dingess v. Nicholson, 19 Vet. App. 473 (2006).

2.  The RO/AMC should request the Veteran treatment records since 2009 from the Dallas VA Medical Center.  All actions to obtain the requested records should be documented fully in the claims file.  

3.  The RO/AMC after under taking any other needed development including obtaining a VA examination if warranted, should adjudicate the claim of service connection for an acquired psychiatric disorder, other than PTSD.  If the benefit sought on appeal is denied, the appellant should be provided a supplemental statement of the case (SSOC).  An appropriate period of time should be allowed for response before the appeal is returned to the Board.

The appellant 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 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).




______________________________________________
NEIL T. WERNER
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs