Citation Nr: 1404591 Decision Date: 02/03/14 Archive Date: 02/14/14 DOCKET NO. 09-08 497 ) 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 diabetes mellitus, type II, to include as due to Agent Orange exposure. 3. Entitlement to service connection for right lower extremity below the knee amputation, to include as due to Agent Orange exposure. 4. Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities, to include as due to Agent Orange exposure. 5. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, to include as due to Agent Orange exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Kristi L. Gunn, Counsel INTRODUCTION The Veteran served on active duty from August 1966 to August 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Waco, Texas, Department of Veterans Affairs (VA) Regional Office (RO). In August 2013, the Veteran testified at a travel board hearing before the undersigned. A copy of the transcript is of record. The Board has reviewed the contents of the Veteran's Virtual VA file and found that it contains additional evidence that has been considered by the RO in the most recent supplemental statement of the case (SSOC) dated March 2013. The issues of entitlement to service connection for diabetes mellitus, type II; right lower extremity below the knee amputation; peripheral neuropathy of the bilateral upper extremities; and peripheral neuropathy of the bilateral lower extremities; to all include as due to Agent Orange exposure, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The competent, credible, and probative evidence of record does not demonstrate the Veteran currently has a diagnosis of PTSD. CONCLUSION OF LAW The criteria for entitlement to service connection for PTSD have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify & Assist The Veterans Claims Assistance Act of 2000 ("VCAA") describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 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 and 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: (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 of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The notice must be provided to the Veteran prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). With regard to the claim on appeal, VA has satisfied its duty to notify by issuing a pre-adjudication notice letter in September 2007. This letter advised the Veteran of what evidence was required to substantiate his claim, and of his and VA's respective duties for obtaining evidence. It provided notice regarding the disability evaluation and effective date elements of a service connection claim. Dingess, 19 Vet. App. at 473. A follow up letter was issued in January 2011. His claim was then readjudicated in the March 2013 Supplemental Statement of the Case (SSOC). See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). The duty to assist provisions of the VCAA have been met. The claims file contains service treatment records (STRs), service personnel records, and VA outpatient treatment records. The Board notes that the record was held open for an additional sixty days after the August 2013 Board hearing in order for the Veteran to submit additional evidence. However, as of this date, no additional evidence has been submitted. In a March 2012 statement, the Veteran indicated that he had not received a "PTSD screening" for his claim. The Board notes that VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). As will be explained below, the Veteran has not been shown to have PTSD at any time during the pendency of the appeal. Therefore, because there is no current disorder that could be related to an event, injury, or disease in service, the Board finds that a VA examination is unnecessary. 38 C.F.R. § 3.159(c)(4)(i); cf. Duenas v. Principi, 18 Vet. App. 512, 517 (2004), citing Paralyzed Veterans of Am. v. Sec'y of Veterans Affairs, 345 F.3d 1334, 1355-57 (Fed. Cir. 2003) (noting that a medical examination conducted in connection with claim development could not aid in substantiating a claim when the record does not already contain evidence of an in-service event, injury, or disease). See also Waters v. Shinseki, 601 F. 3d 1274, 1278 (Fed. Cir. 2010) (noting that a veteran's conclusory generalized statement that a service illness caused his present medical problems was not enough to entitle him to a VA medical examination since all veterans could make such a statement, and such a theory would eliminate the carefully drafted statutory standards governing the provision of medical examinations and require VA to provide such examinations as a matter of course in virtually every disability case). The Veteran testified at an August 201 travel Board hearing before the undersigned. Under 38 C.F.R. § 3.103(c)(2) (2013), it is the responsibility of the hearing officer to explain fully the issues and suggest the submission of evidence which the claimant may have overlooked and which would be of advantage to the claimant's position. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that the hearing officer has two distinct duties under section 3.103(c)(2). First, the hearing officer must explain fully the issues still outstanding that are relevant and material to substantiating the claim by explicitly identifying them for the claimant. Id. at 496 (finding that a hearing officer's inquiries regarding the existence of a current disability and a nexus to service did not equate to explaining to the claimant that these issues were material to substantiating the claim). Second, the hearing officer must suggest that a claimant submit evidence on an issue material to substantiating the claim when such evidence is missing from the record or when the testimony at the hearing raises an issue for which there is no evidence in the record. Id., at 496-97. The Court also observed that the rule of prejudicial error applies in assessing any deficiency with respect to the hearing officer's duties under section 3.103(c). See id. at 498. Citing Sanders, 556 U.S. at 407, 410, the Court noted that the rule of prejudicial error requires a case-by-case determination as to whether the error in question was harmless. Id. Thus, in Bryant, 23 Vet. App. at 498-99, the Court held that although the hearing officer did not explicitly explain the material issues of medical nexus and current disability, the "clarity and completeness of the hearing record was intact" and the purpose of section 3.103(c)(2) fulfilled because the record reflected that these issues were developed by VA, including the provision of a VA examination, and there was no indication that the appellant had any additional information to submit. At the hearing, the Veteran testified as to the current severity and the alleged etiology of his PTSD. Any deficiencies in the August 2013 Board hearing under section 3.103(c)(2) were not prejudicial, and no deficiencies have been shown or alleged. Through numerous notice letters, the Veteran has been advised of what evidence would substantiate his claim, and accorded opportunities to provide substantiating evidence. VA has otherwise developed this claim, including obtaining records on the Veteran's behalf, as discussed above with regard to VA's duty to assist under the VCAA. Moreover, the Veteran did not raise any new issues relevant to his claim for service connection for PTSD at the hearing, and there is also no indication of any outstanding evidence he might submit. See id. at 499. Accordingly, the Board finds that VA has done everything reasonably possible to notify and to assist the Veteran in the development of his claim. Under the circumstances of this case, additional efforts to assist the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (holding that strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case and that such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran). From all assertions noted, the Board has noted no prejudice inures to the Veteran by the current actions. See generally Shinseki v. Sanders, 129 S.Ct. 1696, 1704, 1705, 1706 (noting that "the party that seeks to have a judgment set aside because of an erroneous ruling carries the burden of showing that prejudice resulted"). Pursuant to 38 C.F.R. § 3.655, all relevant evidence necessary for an equitable disposition of the Veteran's appeal of this issue has been obtained and the case is ready for appellate review. II. Decision The Veteran contends that service connection is warranted for his PTSD. At the August 2013 Board hearing, the Veteran testified that in 1966, during his military service, he witnessed a corporal being shot and killed. He also indicated in an October 2007 stressor statement that he was subjected to continuous attacks by the North Vietnamese Army (NVA) and the Vietcong when he was stationed at the military airbase in Da Nang, Republic of Vietnam. He also claimed to have witnessed a "point man" for his unit being caught and dismembered. Since these events, the Veteran stated that he has nightmares and wakes up in cold sweats. The Veteran asserts that his PTSD is related to these in-service stressor events. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A §§ 1110 (West 2002). Service connection may also be granted for any disease after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2013). 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. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). PTSD, not being a psychosis, is not considered a chronic disease under 38 C.F.R. § 3.309(a), and may not be service connected under 38 C.F.R. § 3.303(b). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In adjudicating a claim for service connection for PTSD, the evidence necessary to establish the incurrence of a stressor during service will vary depending on whether or not the Veteran was "engaged in combat with the enemy." See Hayes v. Brown, 5 Vet. App. 60, 66 (1993). If it is determined through military citation or other supportive evidence that a veteran engaged in combat with the enemy, and the claimed stressors are related to combat, a veteran's lay testimony regarding the reported stressors must be accepted as conclusive evidence as to their actual occurrence and no further development or corroborative evidence will be necessary, provided that the testimony is found to be satisfactory, that is, not contradicted by service records, and "consistent with the circumstances, conditions, or hardships of such service." 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d),(f); Doran v. Brown, 6 Vet. App. 283, 289 (1994). To gain the benefit of a relaxed standard for proof of service incurrence of an injury or disease, 38 U.S.C.A. § 1154(b) requires that a veteran have actually participated in combat with the enemy. See VAOPGCPREC 12-99. If it is determined that a veteran did not engage in combat with the enemy, or the claimed stressor is not related to combat, a veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor. In such cases, the record must contain service records or other corroborative evidence which substantiates or verifies a veteran's testimony or statements as to the occurrence of the claimed stressors. See Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). 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: 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. 75 Fed. Reg. 39843 (July 13, 2010). The provisions of this amendment apply to applications for service connection for PTSD that were appealed to the Board before July 13, 2010 but have not been decided by the Board as of July 13, 2010. Thus, they apply to the Veteran's claim. In rendering a decision on appeal the Board must also 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. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67 (1997); Layno v. Brown, 6 Vet. App. 465 (1994); Cartwright v. Derwinski, 2 Vet. App. 24 (1991) (although interest may affect the credibility of testimony, it does not affect competency to testify). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board finds the competent, credible, and probative evidence of record does not show the Veteran has a clinical diagnosis of PTSD. VA outpatient treatment records fail to show a current diagnosis of PTSD. Furthermore, the Veteran testified at the August 2013 Board hearing that he has not been prescribed medication for his claimed PTSD and was unable to recall whether he had been diagnosed with the disability. See the Board hearing transcript, p. 23, 24. Since the competent, credible, and probative evidence of record does not show a current diagnosis of PTSD, service connection cannot be granted. The Court has held that a condition or injury occurred in-service alone is not enough; there must be a current disability resulting from that condition or injury. See Chelte v. Brown, 10 Vet. App. 268 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ("Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability," and held that "[i]n the absence of proof of a present disability[,] there can be no valid claim."); Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992); see Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001) (symptoms alone, without a finding of an underlying disorder, cannot be service connected). The Veteran was informed in September 2007 that he must have evidence of a current disability for his claimed disorder. He has not presented any such evidence nor has he provided any information as to where VA could obtain such evidence other than the VA outpatient treatment records already identified and obtained. The Board has considered the Veteran's statements that he has PTSD due to his military service. This contention is not found to be credible because it is inconsistent with the VA treatment records which do not show any complaints of, treatment for, or a current diagnosis of PTSD. There is no competent, probative or credible evidence of record that documents the presence of PTSD. The resolution of issues that involve medical knowledge, such as the diagnosis of a disability and the determination of medical etiology, requires professional evidence. It is true that the Veteran's lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. §§ 3.303(a), 3.159(a); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). See also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). However, a determination of a diagnosis and etiology of the claimed PTSD, requires specialized training and is therefore not susceptible of lay opinions on etiology. Since there is no competent, probative or credible evidence of PTSD, service connection cannot be granted. For the reasons stated above, the Board finds that a preponderance of the evidence is against the claim of service connection for PTSD, and there is no doubt to be resolved. See Gilbert v. Derwinski, 1 Vet. App. 49, 55. ORDER Service connection for posttraumatic stress disorder (PTSD) is denied. REMAND At the August 2013 Board hearing, the Veteran testified that his right leg was amputated at the Parkland Health and Hospital System in Dallas, Texas, and he was later transferred to a VA facility. See the Board hearing transcript, p. 11. VA outpatient treatment records dated October 2007 also indicate that he was status post right below the knee amputation (BKA) via Parkland Hospital in December 2006. However, the private treatment records from Parkland Hospital have not been associated with the claims file or the Veteran's virtual VA claims file. On remand, the RO should take this opportunity to associate the private medical records with the claims file. The RO must make additional efforts to obtain these records until it determines that further efforts would be futile. Accordingly, the case is REMANDED for the following action: 1. Obtain the private medical records from the Parkland Health & Hospital System in Dallas, Texas, and associate them with the file. The RO should make further efforts to obtain these records until it concludes that such efforts would be futile. If these records cannot be obtained, all efforts to obtain them must be documented and associated with the file, and the Veteran must be notified of this fact and provided with an opportunity to submit these records himself. The RO should also make a formal finding of unavailability and associate it with the file. 2. After accomplishing any additional development deemed appropriate, readjudicate the remaining claims on appeal. If the benefits sought in connection with the claims remain denied, the veteran and his representative should be provided with an appropriate Supplemental Statement of the Case (SSOC) and given the opportunity to respond. 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). (CONTINUED ON NEXT PAGE) 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. 2013). ______________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs