Citation Nr: 1512490	
Decision Date: 03/24/15    Archive Date: 04/01/15

DOCKET NO.  07-39 459	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in North Little Rock, Arkansas


THE ISSUES

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

2.  Entitlement to service connection for a headache disorder, to include as secondary to degenerative disc disease of the lumbar spine.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant



ATTORNEY FOR THE BOARD

Shamil Patel, Counsel


INTRODUCTION

The Veteran had active duty for training (ACDUTRA) from January 1987 to July 1987, and had additional service in the Arkansas National Guard through February 2007.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas, which, in relevant, part denied service connection for depressive disorder and headaches.

The Veteran testified before the undersigned Acting Veterans Law Judge (AVLJ) at a Travel Board hearing in December 2008.  A copy of the hearing transcript is of record.

The Board remanded the Veteran's claims in March 2011.  In September 2012, the Board granted service connection for major depressive disorder, but remanded the claim for service connection for headaches for yet further development.  The Board also determined that the issue of entitlement to service connection for PTSD was on appeal, but that further development for that claim was also necessary, and therefore it, too, was remanded.

A portion of the Veteran's records are contained in the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims systems.  Any future consideration of this Veteran's claims should take into consideration the existence of this electronic record.

The issue of entitlement to service connection for a headache disorder is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

PTSD has not been attributed to a verified stressor in service.


CONCLUSION OF LAW

The criteria for service connection for PTSD have not been met.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304 (2014).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  The Duties to Notify and Assist

Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.  38 C.F.R. § 3.159 (2014).  Here, the Veteran was provided with the relevant notice and information in a May 2007 letter prior to the initial adjudication of his claim.  Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II).  The Board determined in September 2012 that notice specific to the claim of PTSD was warranted, and such additional notice was provided in April 2013.  The claim was then readjudicated in a June 2013 supplemental statement of the case.  Therefore, any deficiency in the timing of this notice was rectified.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the AOJ's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by readjudication of the claim by the AOJ); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).  The Veteran has not alleged any notice deficiency during the adjudication of his claim.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009).

VA also has a duty to assist the Veteran in obtaining potentially relevant records, and providing an examination or medical opinion when necessary to make a decision on the claim.  Here, the Veteran's service treatment records, service personnel records, Social Security Administration (SSA) records, VA records, and identified private treatment records have been obtained and associated with the claims file.  Pursuant to the September 2012 remand, the Veteran was requested to provide information regarding his claimed stressor, specifically the names of three National Guardsmen who he knew who were killed in Iraq.  He was also asked to provide additional information regarding any outstanding treatment records pertinent to his claim.  However, the Veteran did not respond to these requests for information.

The Veteran was also provided with VA examinations which, collectively, contain a description of the history of the disability at issue; document and consider the relevant medical facts and principles; and provide opinions regarding the etiology of the Veteran's claimed condition.  VA's duty to assist with respect to obtaining relevant records and an examination has been met.  38 C.F.R. § 3.159(c); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).

Finally, the Veteran also had a hearing before the Board.  The hearing was appropriately conducted as the presiding AVLJ duly explained the issue and identified possible sources of evidence that may have been overlooked and that might be potentially advantageous to the claimant's position.  38 C.F.R. 3.103(c)(2); Bryant v. Shinseki, 23 Vet. App. 488 (2010).

II.  Service Connection

Typically, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131.  Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a) (2014).

There are particular requirements for establishing entitlement to service connection for PTSD in 38 C.F.R. § 3.304(f) that are in ways similar, but also nonetheless separate, from those for establishing entitlement to service connection generally.  Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010).  Entitlement to service connection for PTSD, in particular, requires (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) credible supporting evidence that a claimed in-service stressor occurred; and (3) a link, established by medical evidence, between current symptoms and the in-service stressor.  38 C.F.R. §§ 3.304(f) and 4.125.

Notably, the Veteran is already service-connected for depressive disorder secondary to his service-connected lumbar spine degenerative disc disease.  Therefore, the Board's inquiry in this case is specifically whether he also has PTSD attributable to a stressor in service.

The Veteran attributed his depression, in part, to his back problems.  See Hearing Transcript at 13.  However, he also stated that he had three different friends killed in Iraq when their helicopter was shot down.  Id.  This is the only in-service event identified by the Veteran as a potential PTSD stressor.  

The Veteran's military record does not show that he served in combat, and his claimed stressor is not related to his own participation in combat.  Therefore, the provisions of 38 C.F.R. § 3.304(f)(2) and 38 U.S.C.A. § 1154(b) are not applicable.  Similarly, the Veteran's stressor is not related to the his own fear of hostile military or terrorist activity, and therefore the provisions of 38 C.F.R. § 3.304(f)(3) are also inapplicable. 

In light of the above, there must be credible supporting evidence to corroborate the Veteran's statement as to the occurrence of the claimed stressor of the deaths of these three National Guardsmen known to the Veteran. See Doran v. Brown, 6 Vet. App. 283, 288-89 (1994).

However, as discussed above, the Veteran did not respond to a request for additional information regarding these National Guardsmen.  Without such information, attempts to verify their deaths through the Joint Services Records Research Center (JSRRC) or other means are not possible.  As a result, there is no credible supporting evidence to corroborate the Veteran's claimed stressor.  Without a verified in-service stressor, service connection for PTSD must be denied.


ORDER

Service connection for PTSD is denied.


REMAND

Although the Board regrets the additional delay, further development is necessary in order to fully and fairly adjudicate the Veteran's claim for service connection for headaches.

The claim was previously remanded in September 2012, in part, to obtain a VA examination and opinion regarding the nature and etiology of the Veteran's headache condition.  A May 2013 VA examiner opined that the Veteran had vascular headaches which were not related to any exposure to certain fuels as asserted by the Veteran.

Unfortunately, further development is necessary.  First, the examiner did not address service treatment records dated December 1988 which show the Veteran complained of a pounding headache after a drive back from Florida.  He was diagnosed with vascular headaches.

Second, although it was requested by the Board, the examiner did not offer an opinion as to whether the Veteran's headaches were caused or aggravated by his lumbar spine degenerative disc disease.  Therefore, on remand, corrective action is necessary.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions).

Accordingly, the case is REMANDED for the following action:

1.  Forward the claims file, including a copy of this remand, to an appropriately qualified VA examiner.  The examiner should review the claims file and then address the following questions.

a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's diagnosed vascular headaches are etiologically related to service?

In answering this question, the examiner must address the December 1988 service treatment record showing a diagnosis of a vascular headache after the Veteran reported driving back from Florida.

b) Is it at least as likely as not (50 percent or greater probability) that the Veteran's diagnosed headaches are caused by his service-connected lumbar spine degenerative disc disease?

c) Is it at least as likely as not (50 percent or greater probability) that the Veteran's diagnosed headaches are aggravated by his service-connected lumbar spine degenerative disc disease?

In addressing this question, the examiner should not that the term "aggravation" in the above context means refers to a chronic or permanent worsening of the underlying headache condition, as contrasted with mere temporary or intermittent flare-ups of symptoms that resolve with return to the baseline level of disability.

The examiner must discuss the underlying rationale of all of these requested opinions, whether favorable or unfavorable to the claim, including citing to specific evidence in the file if necessary to support the conclusions reached.

2.  Then readjudicate this remaining claim in light of this and all other additional evidence.  If the claim continues to be denied or is not granted to the Veteran's satisfaction, send him and his representative an SSOC and, after they have had an opportunity to respond to it, return the file to the Board for further appellate consideration the claim.

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 2014).


______________________________________________
KELLI A. KORDICH
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs