Citation Nr: 1516936	
Decision Date: 04/20/15    Archive Date: 04/24/15

DOCKET NO.  10-40 873	)	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 disorder other than PTSD.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

D. Bredehorst


INTRODUCTION

The Veteran served on active duty from June 1956 to June 1959 and from August to November 1961.

This appeal to the Board of Veterans' Appeals (BVA) is from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran testified at a Travel Board hearing in August 2013; a transcript of the hearing is stored electronically using the Virtual VA claims processing system.

In January 2014, the case was remanded for additional development.

The issue of entitlement to service connection for a psychiatric disorder includes not only PTSD but also major depressive disorder and anxiety disorder.  Clemons v. Shinseki, 23 Vet. App. 1 (2009).  The issues have been recharacterized to comport with Clemons.

This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  38 U.S.C.A. § 7107(a)(2) (West 2014).

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

FINDINGS OF FACT

1.  The Veteran did not serve in combat, she does not have a stressor involving fear of hostile military or terrorist activity, and the alleged stressor was not corroborated.

2.  There is no evidence of a psychiatric disorder in service; her currently diagnosed manifested many years after service and are not shown to be related to military service.


CONCLUSION OF LAW

The criteria for service connection for an acquired psychiatric disorder to include PTSD have not been met.  38 U.S.C.A. §§ 1131, 5107 (West 2014); 38 C.F.R. § 3.303, 3.304(f) (2014).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence that the claimant is expected to provide.  38 C.F.R. § 3.159(b)(1) (2014).  The notice should also address all five elements of the claim: (1) Veteran status, (2) existence of a disability, (3) relationship between the disability and service, (4) disability rating, and (5) effective date.  See Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006); aff'd sub nom.  Hartman v. Nicholson, 483 F.3d 1311 (2007).

To the extent possible, VCAA notice, as required by 38 U.S.C.A. § 5103(a) (West 2014), must be provided to a claimant before an initial unfavorable decision on a claim for VA benefits.  Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

The Veteran was provided the notice described above by way of a May 2009 pre-adjudication letter that informed him of the types of information and evidence necessary to substantiate the claim for service connection, and the division of responsibility between the Veteran and VA for obtaining that evidence, including the information needed to obtain lay evidence and both private and VA medical treatment records.  In addition, the letter met the notification requirements set out for service connection in Dingess.

VA also has a duty to assist the Veteran in the development of the claim.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  To this end, service personnel and treatment records were obtained and all identified evidence was associated with the records.  Pursuant to the Board's January 2014 remand additional development was requested to obtain ongoing treatment records, and verify the Veteran's service at Ft. Jackson and non-combat stressor.  The record shows that there has been substantial compliance with the requested development.  See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268 (1998).  In short, all relevant evidence necessary for an equitable resolution of the issue on appeal has been identified and obtained, to the extent possible.  An examination in this is not necessary since the alleged stressor was not corroborated and the evidence does not suggest that an acquired psychiatric disorder is related to service.

No further action prior to appellate consideration of the claim is required.

Legal Criteria and Analysis

Service connection may be established when the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service.  38 U.S.C.A. § 1131 (West 2014); 38 C.F.R. § 3.303(a) (2014).  In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability.  See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

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.

If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, 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.  38 C.F.R. § 3.304(f).  See 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d) (pertaining to combat veterans); Gaines v. West, 11 Vet. App. 353 (1998) (Board must make a specific finding as to whether the veteran engaged in combat).

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.  38 C.F.R. § 3.304(f)(3).

The standard of proof to be applied in decisions on claims for Veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2014).  A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence.  See also 38 C.F.R. § 3.102.  When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The preponderance of the evidence must be against the claim for benefits to be denied.  See Alemany v. Brown, 9 Vet. App. 518 (1996).

VA treatment records contain a diagnosis of PTSD.  See pages 208, 537, and 547 of CAPRI records received January 16, 2014.

There is no evidence of PTSD related symptoms or diagnosis in service.  See STRs.

The Veteran contends she has PTSD as a result of witnessing the body of a young female sergeant who hung herself.  See page 3 of the hearing transcript in Virtual VA.  

Her alleged stressor is not the type of stressor that can be accepted based on her statements alone since she did not serve in combat (i.e., non-combat related) and it is not based on fear of hostile military or terrorist activity.  See 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(f)(2) and (f)(3).  Therefore, there must be credible supporting evidence to corroborate the Veteran's statement as to the occurrence of the claimed stressor of a sergeant's suicide.  See Doran v. Brown, 6 Vet. App. 283, 288-89 (1994).

Reasonable attempts were made to corroborate the stressor based on the available information; however, this task was complicated by the Veteran's inability to recall the sergeant's last name.  See Web/HTML Documents received May 6, 2014 and VA 21-3101 Request for Information.   The RO ultimately was unable to corroborate the Veteran's stressor despite the efforts outlined in the January 2015 Memorandum.  See Administrative Decision received January 27, 2015.  

In the absence of a corroborated non-combat stressor and a diagnosis based on the stressor, a preponderance of the evidence is against the claim for service connection for PTSD, therefore, service connection is denied.


ORDER

Service connection for PTSD is denied.


REMAND

The evidence of record includes diagnoses of major depressive disorder and anxiety disorder.  The U.S. Court of Appeals for Veterans Claims (Court/CAVC) has held that the scope of a claim for service connection for a mental disability includes any mental disability that reasonably may be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record.  See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009); see also Brokowski v. Shinseki, 23 Vet. App. 79, 85 (2009) (A claimant's identification of the benefit sought does not require any technical precision), citing Ingram v. Nicholson, 21 Vet. App. 232, 256-57 (2007) (It is the pro se claimant who knows what symptoms he is experiencing and that are causing him disability); see, too, Robinson v. Nicholson, 21 Vet. App. 545, 552 (2008) (The Board is required to consider all issues raised either by the claimant or the evidence of record). 

Clemons concerned VA's failure to consider a claim of entitlement to service connection for a psychiatric disorder other than the one specifically claimed, even though it shared the psychiatric symptomatology for which the Veteran was seeking service connection.  The Clemons Court found that, as an example, where a Veteran's claim identifies PTSD, without more, it cannot be a claim limited only to that diagnosis, rather must be considered a claim for any mental disability that reasonably may be encompassed by the evidence of record.  The Clemons Court indicated that, when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled.  

Since the record reflects psychiatric disorders the RO has yet to consider, the matter must be remanded.

Accordingly, the case is REMANDED for the following action:

(This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1.  Undertake any development deemed necessary regarding the Veteran's other psychiatric diagnoses.

2.  Then readjudicate the claim in light of this and all other additional evidence.  If the benefits sought remain denied the Veteran and her representative should be provided a supplemental statement of the case (SSOC).  An appropriate period of time should be allowed for a response.

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 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