Citation Nr: 1336096 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 12-08 049A ) DATE ) MERGED APPEAL ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disability, to include post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for a back disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. E. de Jong, Associate Counsel INTRODUCTION The Veteran (appellant) served on active duty from July 1952 to July 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2011 and February 2012 rating decisions of the RO in New Orleans, Louisiana, which denied service connection for a back condition and PTSD, respectively. The Veteran testified before the undersigned at a September 2013 hearing at the RO. A transcript has been associated with the file. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" and VBMS systems to insure a total review of the evidence. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of entitlement to service connection for a back condition is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran does not have a current diagnosis of PTSD or any other mental disorder, as defined by the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disability, to include PTSD, have not been met. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Service Connection The Veteran contends that he is entitled to service connection for PTSD, because he experienced sniper fire and was engaged in dangerous work as a minesweeper during his service in Korea. For the reasons that follow, the Board finds that entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is not warranted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Specific to PTSD, establishing service connection requires: medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (conforming to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)); 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) (2013). In this case, the evidence fails to show the Veteran has a current diagnosis of PTSD conforming to the DSM-IV criteria. The Veteran was afforded a VA examination in February 2012. On examination, the examiner indicated that the Veteran did not have a diagnosis of PTSD or any other mental disorder that conformed to DSM-IV criteria. The examiner did indicate that the Veteran was experiencing psychosocial and environmental problems related to his own physical ailments and his wife's rehabilitation from back surgery. On examination, the Veteran reported that he had been married for over 60 years, and that he lived with his wife and his daughter. He reported a satisfactory home life and an active social life, including regular visits with friends and relatives. The Veteran also reported enjoying hunting with his son and grandson. The Veteran stated that he had run his own masonry business from the time of his separation from service until 1989, when he retired. The Veteran denied any history of mental health problems or treatment. The Veteran reported his stressor as injuring his back while serving in Korea, and did not describe any other stressor events on examination. On this basis, the examiner indicated that the Veteran had not been exposed to a traumatic event and did not meet the criteria for a PTSD diagnosis. The examiner noted that the Veteran's chief complaint was back pain related to a back injury in service, and that the Veteran denied experiencing depression or anxiety. The examiner also noted that the Veteran reported satisfactory sleep and appetite, and that his only complaint of an emotional nature was occasional aggravation which the Veteran stated passed after sitting down for a few minutes. The next evidence of record related to the Veteran's claimed acquired psychiatric disability is a March 2012 treatment note from the Veteran's primary care provider at the Alexandria VA Medical Center (VAMC). The treatment note indicates that the Veteran reported "some depression" as well as persistent cold symptoms to a nurse upon presenting for his appointment. The Veteran's primary care provider did not conduct a mental health evaluation, nor did any mental health professional see the Veteran on that occasion. The Veteran's primary care provider noted possible depression or PTSD and prescribed an antidepressant medication. The primary care provider also indicated she would refer the Veteran to the outpatient PTSD clinic at the Alexandria VAMC for a consultation. Although the Veteran's primary care provider did note possible PTSD and prescribed an antidepressant at the March 2012 appointment, there is no indication that a diagnosis of PTSD or any other mental health disorder conforming to the DSM-IV criteria was made at that time. The Veteran's primary care provider was not a mental health professional, and no mental health professional examined the Veteran at that appointment. Furthermore, no mental health evaluation was conducted at that time. The only notes that were made related to psychiatric symptoms at that appointment were that the Veteran was fully oriented and alert. As no mental health professional examined the Veteran, no mental health evaluation was conducted, and no mention of any PTSD symptoms or the DSM-IV criteria was made at the March 2012 primary care appointment, this evidence does not show that the Veteran was diagnosed with PTSD or any other mental disorder conforming to the DSM-IV criteria. The Veteran was referred to the Alexandria VAMC PTSD clinic and the file contains a record of his March 2012 clinic appointment. The VA psychologist who evaluated the Veteran noted that he presented with a primary concern about his sleep habits, and requested medication to help manage his sleep. On examination, the Veteran reported that he had hurt his back while carrying a heavy object during his service in Korea. The Veteran reported that he had been married over 60 years, and lived with his wife, their daughter, and two grandchildren. The Veteran stated that he lived a comfortable life with plenty of family involvement. The psychologist noted that the Veteran was fully oriented, adequately dressed and groomed, and spoke at a normal rate, tone, volume and rhythm. The Veteran presented with a euthymic attitude and euphoric mood, and his affect was congruent with his mood. The Veteran had normal thought processes, fair insight, and average intelligence, and his judgment was intact. The Veteran denied suicidal or homicidal ideation. The Veteran was evaluated using the Beck Depression Inventory (BDI) and the PTSD Checklist (PCL), as well as an interview, and the psychologist found the Veteran's interview responses to be incongruent with his responses on these forms. The psychologist noted that the Veteran indicated having physical reactions when reminded of military experience "quite a bit" on the PCL, but when asked during the interview the Veteran reported "hardly ever." He also indicated suddenly acting or feeling as if a stressful military experience was happening again "quite a bit" on the PCL, but verbally reported that this did not occur. The psychologist noted several incongruent responses on the BDI, including the Veteran's indication on the form that he couldn't get any pleasure from things he used to enjoy, in contrast to his verbal report that he was still able to participate in things he enjoyed, such as hunting, fishing, and spending time with family and friends. On the basis of the Veteran's psychological testing and interview, the VA psychologist concluded that the Veteran did not meet the DSM-IV criteria for PTSD or any other mental disorder. The psychologist indicated that the Veteran declined participation in psychotherapy, and that he would be referred back to his primary care provider for further evaluation of his sleep management and medication. This evidence does not show that the Veteran has a current diagnosis of PTSD or any other mental disorder conforming to the DSM-IV criteria. There is no other evidence of record related to the Veteran's claimed acquired psychiatric disability. There is no evidence of record that shows the Veteran has a current diagnosis of PTSD or any other mental disorder conforming to the DSM-IV criteria. Therefore, the first element of his claim of entitlement to service connection for an acquired psychiatric disability, to include PTSD, is not satisfied. As such, the Board finds that the preponderance of the evidence is against the Veteran's claim for an acquired psychiatric disability, to include PTSD. Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). II. Duties to Notify and Assist A. Duty to Notify VA has met all statutory and regulatory notice and duty to assist provisions as to the Veteran's claim of entitlement to service connection for PTSD. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013). When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Compliance with the first element requires notice of the five service connection elements: (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.A. § 5103(a); see also Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006). A January 2012 letter fully satisfied the duty to notify provisions prior to initial adjudication of the Veteran's claim in February 2012. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). Regarding VA's duty to assist in claims development, the Board notes that the Veteran's service records are fire-related. The Board is aware that when service records are unavailable through no fault of the Veteran, it has a heightened duty to assist, as well as an obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). As will be explained below, however, the Board concludes the heightened duty to assist has been met. The Board initially notes that the Veteran's DD Form 214, his July 1954 separation examination report, and a July 1953 Army Surgeon General report are included in the record. However, in response to RO requests, the National Personnel Records Center stated that the Veteran's remaining service personnel and treatment records were fire-related and the information requested could not be reconstructed. The Veteran was notified that his records were fire-related in the February 2012 rating decision, and the RO stated that VA's decision would be reconsidered if the records were located at a later date. While the Veteran was not specifically asked to submit any service records he may have in his possession or advised that it was ultimately his responsibility to provide the evidence with regard to his PTSD claim, the failure to do so is non-prejudicial. He had previously been advised to submit any evidence in his possession that pertained to his claim in the notice letter discussed above. He has not indicated that he is in possession of any service records. Therefore, in light of the foregoing, the Board finds that further efforts to obtain missing service records would be futile. The Veteran has also been adequately advised regarding the unavailability of his service records in accordance with 38 C.F.R. § 3.159(e). The Board additionally notes that the claims file contains all available evidence pertinent to this claim. VA has requested treatment records identified throughout the claims process. The Veteran was given appropriate notice of his responsibility to provide VA with any treatment records pertinent to his claimed psychiatric disorder and the record contains sufficient evidence to make a decision on that claim. The Board is remanding the Veteran's claim of entitlement to service connection for a back condition for further development to obtain treatment records from the Alexandria VAMC. However, these records are not relevant to the Veteran's claim of entitlement to service connection for PTSD. The Veteran testified at his September 2013 hearing that he has never received psychiatric treatment at the VA or any private facility, and there is no indication in the evidence of record that any outstanding treatment records relevant to the Veteran's PTSD claim exist. The Board would like to note that the case law does not lower the legal standard for proving a claim for service connection in such circumstances, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant. See Russo v. Brown, 9 Vet. App. 46 (1996). Furthermore, the Veteran was afforded a PTSD examination in February 2012. The examination was conducted by a licensed psychologist who reviewed the Veteran's claims folder and performed a mental evaluation of the Veteran. The examination report includes all relevant findings and a medical opinion with sound rationale. The examining clinical psychologist found that the Veteran had no mental disorder diagnosis and did not meet the criteria for PTSD. Upon review, the Board finds that the examination report is adequate. At the September 2013 hearing, the Veteran's representative requested that a new PTSD examination be afforded to the Veteran because he declined to volunteer relevant information at the February 2012 examination. The Veteran indicated that his failure to provide relevant information to the VA psychiatrist had to do with his distrust or fear of psychiatrists and his belief that a psychiatrist would believe he was crazy. The Veteran's representative asserted that the Veteran would volunteer all relevant information if a new examination was provided. The Veteran stated that he would have no objection to having another PTSD examination, but the Veteran did not request that another examination be provided or indicate that he believed the February 2012 examination was inadequate for any reason. The evidence of record includes not only the Veteran's PTSD examination, but a March 2012 record of the Veteran's evaluation and assessment for PTSD at the Alexandria VAMC mental health clinic. This evaluation yielded similar findings to the February 2012 examination and the Veteran provided similar information, although the provider was not a psychiatrist. As there are multiple psychiatric evaluations already of record, the Veteran has not challenged the adequacy of his PTSD examination, and there is no objective evidence to indicate that a new VA examination for PTSD would yield different results, the Board finds that a new VA examination for PTSD is not warranted. The Court held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. § 3.103(c)(2) requires that the RO official or 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 September 2013 hearing, the undersigned VLJ specifically addressed the criteria for service connection and suggested that outstanding VA treatment records could help the Veteran's back condition claim. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). ORDER Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is denied. REMAND The Board must remand the claim of entitlement to service connection for a back condition to develop additional evidence. At his September 2013 hearing, the Veteran indicated that he had received treatment for his back condition at two different facilities from the time of his separation from service in 1954 to the present, although he had difficulty remembering the exact dates of his treatment. The Veteran specifically indicated that he received treatment for his back condition at the Alexandria VA Medical Center (VAMC) in Pineville, Louisiana. He believed he had been treated there from the time of his separation from service in 1954 to the present. Treatment records from the Alexandria VAMC relating to the Veteran's back condition have been associated with the file, but these records only date from November 2010 to the present. The Veteran also specifically indicated that he received treatment and X-rays for his back condition at Cabrini Hospital in Alexandria, Louisiana during the 1980s. Unfortunately he could not remember a more specific date range. No records from Cabrini Hospital have been associated with the file, and no requests for records from Cabrini Hospital have been made by the RO. As these records have been identified by the Veteran and may be relevant to his claim, they should be sought out by VA. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Obtain any outstanding treatment records from the Alexandria VAMC for the period from 1954 to the present. This must include a special search of retired and archived records. The RO should request these records not only from the VA medical facility, but also from the Records Management Center. All actions to obtain the requested records should be fully documented in the claims file. If the requested records are unavailable or the search for them otherwise yields negative results and further attempts to obtain the records would be futile, this must be documented in the claims file and the Veteran notified. 2. Request that the Veteran specifically identify the dates of his treatment for his back condition at Cabrini Hospital in Alexandria, Louisiana during the 1980s, as well as any other private treatment records relevant to his service connection claim for a back disability. Then ask the Veteran to complete a release authorizing VA to request his medical records from Cabrini Hospital, and separate releases for any other facilities identified. Once the records are adequately identified by the Veteran and he has authorized VA to request them, obtain the records. If the requested records are unavailable or the search for them otherwise yields negative results and further attempts to obtain the records would be futile, this must be documented in the claims file and the Veteran notified. 3. Then, review the additional evidence and undertake any other development suggested by the information therein. Then, the RO should readjudicate the claim. If it remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs