Citation Nr: 1336928 Decision Date: 11/13/13 Archive Date: 11/26/13 DOCKET NO. 05-03 219 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). ATTORNEY FOR THE BOARD M. McBrine, Counsel INTRODUCTION The Veteran served on active duty from May 1961 to July 1963. This case comes before the Board of Veterans' Appeals (Board) from a March 2003 rating decision of the RO in Los Angeles, California. The Board remanded this matter in June 2009, February 2012, and October 2012 for additional development. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. In addition, that evidence was reviewed by the RO prior to its last adjudication of the appeal. In an October 2011 letter, the RO informed the Veteran that, while Disabled American Veterans had previously been actively involved in his claim, no power of attorney had ever been filed for this organization to represent him in his appeal. The Veteran was informed that he needed to submit such a power of attorney if he wanted this or any other organization or individual to represent him. The Veteran did not do so; therefore, he is unrepresented in this appeal. An April 2009 letter shows that the Veteran was informed that he was scheduled for his requested hearing before the Board that was to have occurred in May 2009. However, he did not appear for this hearing, cancel it beforehand, or ask to be rescheduled. Therefore, the Board deems that his hearing request is withdrawn. FINDING OF FACT The occurrence of a stressor to which the Veteran attributes the symptoms of PTSD is not supported by credible evidence. CONCLUSION OF LAW PTSD was not incurred in or aggravated by active service. 38 U.S.C.A. § 1131 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Preliminary Matters The Board has thoroughly reviewed all the evidence in the Veteran's claims folders. 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 Veteran 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). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Both the Veteran's virtual and physical claims files have been reviewed. The most recent remand in October 2012 requested that United States Joint Service Records Research Center (JSRRC) verify the Veteran's alleged stressors and make a formal finding as to whether the Veteran's claimed in-service stressors could be verified. This development was accomplished and a further Supplemental Statement of the Case was issued in September 2013. Based on the foregoing actions, the Board finds that there has been compliance with the Board's prior Remand. Stegall v. West, 11 Vet. App. 268 (1998). Veterans Claims Assistance Act of 2000 With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. 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 the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her 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) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. The Board finds that the VCAA letters dated in March 2006, September 2009, June 2011, February 2012, and January 2013, as well as the prior remands in June 2009, February 2012, and October 2012, satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (1) (2012); Quartuccio, at 187. The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claims. The letters informed him that additional information or evidence was needed to support his claims, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. The Board does note that this is a rebuilt folder, and therefore, there may have been earlier letters sent to the Veteran which also satisfied the duty to assist the Veteran. Furthermore, even if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of this appeal, the Veteran clearly has actual knowledge of the evidence the Veteran is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Veteran understands what was needed to prevail. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) (finding that "no error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). In this case, the Veteran was initially represented by an experienced Veterans Service Organization (VSO) and has submitted argument in support of his claims. These arguments have referenced the applicable laws and regulations. Thus, the Board finds that the Veteran has actual knowledge as to the information and evidence necessary for him to prevail on his claims and is not prejudiced by a decision in this case. As such, a further remand for additional notice would serve no useful purpose and would in no way benefit the Veteran. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (noting that remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran are to be avoided). The Board also concludes VA's duty to assist has been satisfied. All records identified by the Veteran as relating to the claims have been obtained, to the extent possible, including Social Security Administration records. Efforts have been made to verify the Veteran's claimed stressors. The Board finds that the record contains sufficient evidence to make a decision on the claims. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4)(i)(2012). In this case, the Board notes that the Veteran was provided with multiple VA examinations during the course of this appeal, most recently in May 2012. The VA examination reports reflect that the examiners reviewed the Veteran's past medical history, recorded his current complaints, conducted appropriate evaluations of the Veteran, rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record, and provided sufficient information to evaluate the Veteran's claim. Additionally, the Veteran has not stated nor is there evidence indicating that there has been a material change in the severity of his disabilities since he was last examined in May 2012. See 38 C.F.R. § 3.327(a) (2012). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See VAOPGCPREC 11-95 (April 7, 1995). The Board concludes that the examination reports of record are adequate for purposes of rendering a decision in the instant appeal. See 38 CF.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran has not contended otherwise. 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 Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Legal Criteria Service connection means that the facts establish 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 during service. 38 U.S.C.A. § 1131 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303(a) (2013). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (2013); 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). 38 C.F.R. § 4.125(a) (2013) requires that diagnoses of mental disorders conform to the Diagnostic and Statistical Manual for Mental Disorders (DSM-IV). If there is no combat experience, or if there is a determination that the Veteran engaged in combat but the claimed stressor is not related to such combat, there must be independent evidence to corroborate the Veteran's statement as to the occurrence of the claimed stressor. Doran v. Brown, 6 Vet. App. 283, 288-89 (1994). The Veteran's testimony, by itself, cannot, as a matter of law, establish the occurrence of a non-combat stressor. Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). Moreover, a medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressors. Cohen v. Brown, 10 Vet. App. 128, 142 (1997). In this case, the Veteran has not reported that any of his claimed stressors were related to combat nor has he described stressors that involve hostile military or terrorist activity. In the absence of evidence that establishes that the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, there must be credible supporting evidence that the claimed in-service stressor occurred and a link, established by medical evidence, between PTSD and the confirmed in-service stressor. 38 C.F.R. § 3.304(f) (2013). Facts and Analysis Initially, the Board points out that the preponderance of the evidence of record indicates that the Veteran does not have a current diagnosis of PTSD. In this regard, the Veteran's most recent May 2012 PTSD examination did not find a diagnosis of PTSD, but rather dysthymic disorder manifested by problems with alcoholism, difficulty in interpersonal relationships and anger issues. That examiner noted that the Veteran's medical records for the past several years were silent about the diagnosis of PTSD, which had been considered in earlier years, and his more recent diagnostic considerations in recent years have been depression and anxiety. The examiner specifically indicated that the Veteran did not meet the current criteria for PTSD. Reviewing the remainder of the relevant evidence, the Board notes that a VA September 1991 record proposed to rule out a bipolar disorder, a January 2000 VA outpatient treatment record noted the Veteran was currently anxious and depressed, with a past history of manic depression, a February 2004 outpatient treatment record found the Veteran to have depression, a November 2004 VA mental health evaluation diagnosed the Veteran with depression, and a July 2008 VA mental health initial assessment diagnosed the Veteran with depression. None of these records diagnosed the Veteran with PTSD. The Board does note that an October 2001 evaluation by a VA psychologist diagnosed the Veteran with PTSD, as well as depression, alcohol dependence in full remission, and a history of a bipolar disorder. While the Board has considered this examination, the Board notes that it appears that the examiner based her opinion in large part on the Veteran's reported stressors, which, as noted below, have been unconfirmed. Therefore, the Board finds her diagnosis of PTSD to be of limited probative value. As such, the Board finds that the preponderance of the evidence of record indicates that the Veteran does not meet the criteria for a diagnosis of PTSD, but rather for another psychiatric disorder, for which the Veteran was granted service connection in an October 2012 Board decision, implemented in a December 2012 RO decision. As such, service connection would not be warranted for PTSD. However, even if the Veteran were found to have PTSD, the Board notes that the Veteran has no confirmed stressors. In this regard, the Board notes that the Veteran's three claimed stressors were submitted to the U.S. Army and Joint Services Records Research Center (JSRRC) in March 2013 for further development. The Veteran contends witnessing the body of a fellow soldier who hung himself in service around April or May of 1963, having to assist in the recovery of a truck accident that resulted in the deaths of seven soldiers, again in April or May of 1963, and experiencing the death of two members of his unit in a severe storm, in March or April of 1963, were all stressful situations that caused his PTSD. In response to that request, a Defense Personnel Records Information Retrieval System document indicated that no information was found to corroborate these claimed stressors. Specifically, a review of casualty data did not show the death of any of the specifically named casualties, nor did it show the death of soldiers in a truck accident. Further a response from the JSRRC clearly indicated that they had no record of any of the Veteran's alleged stressors. As such, a September 2013 statement from the RO contained a formal finding of a lack of information required to corroborate stressors associated with his claim of entitlement to PTSD. Therefore, the VA has done everything reasonably possible to confirm the existence of this Veteran's stressors, and been unable to. In adjudicating a claim, the Board must assess the competence and credibility of the Veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board also has a duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Veteran is competent to give evidence about what he experienced; for example, he is competent to report that he engaged in certain activities in service and currently experiences certain symptomatology. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). Competency, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The Board notes that factors to consider when assessing the credibility of lay evidence include facial plausibility, internal consistency, consistency with other evidence, interest, and bad character. In this case, the Veteran's accounts of what happened simply are not supported by any actual evidence of record. The Veteran has provided the specific names of a person he saw hung in service, and the names of two members of his unit he said died in service, but no corroborating evidence has been able to be found in support of his contentions, nor is there any objective evidence of record detailing a truck accident during the Veteran's service in which seven service members died. Because these are the kinds of situations for which there should be records, such as the deaths of unit members, and because a thorough search has not found any such records, the Board concludes that the Veteran's statements are not credible, as his claimed stressors are not supported by the credible evidence of record, as is required under 38 C.F.R. § 3.304(f). Overall, the preponderance of the evidence is against the finding that the Veteran has a current diagnosis of PTSD that is predicated upon, and the proximate result of, a corroborated in-service stressor. Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection for PTSD, and the benefit of the doubt rule enunciated in 38 U.S.C.A. § 5107(b) is not for application. ORDER Entitlement to service connection for PTSD is denied. ____________________________________________ REBECCA FEINBERG Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs