Citation Nr: 1625205 Decision Date: 06/22/16 Archive Date: 07/11/16 DOCKET NO. 05-13 178 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for schizophrenia. 2. Entitlement to service connection for posttraumatic stress disorder (PTSD). 3. Entitlement to service connection for diabetes mellitus. 4. Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: Veterans of the Vietnam War, Inc. ATTORNEY FOR THE BOARD B. Mullins, Counsel INTRODUCTION The appellant claims active service from December 1973 to April 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In an April 2005 substantive appeal (VA Form 9), the appellant requested a hearing before the Board (sitting at the RO). The appellant reported and the record showed that he had been incarcerated at a state correctional facility since 1984. Board hearings may be held in Washington, D.C. or in VA field offices having adequate resources. 38 C.F.R. § 20.704 (2015). The purpose of a hearing is to receive argument and testimony in person from the appellant and witnesses, if any. A hearing for a representative to appear alone for the purpose of presenting argument requires good cause. 38 C.F.R. § 20.700 (2015). In correspondence in September 2007, the facility warden noted that the appellant could not be escorted outside the facility but could be made available at the facility in person or by telephone. This hearing venue and method are not contemplated in the regulations, and no request for oral argument by the representative has been received. In April 2009 and November 2011, the Board remanded the claims currently on appeal for further evidentiary development. FINDINGS OF FACT 1. The appellant is currently incarcerated in a state correctional facility following conviction of a felony and is serving a life-term of confinement. 2. The record does not reflect that the appellant DMT is the Veteran LW. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for a psychiatric disability, to include schizophrenia and PTSD, have not been met. 38 U.S.C.A. §§ 101(2), 1101, 1110, 1112, 1131, 1153, 5103(a), 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f) (2015). 2. The criteria for establishing entitlement to service connection for diabetes mellitus have not been met. 38 U.S.C.A. §§ 101(2), 1101, 1110, 1112, 1131, 1153, 5103(a), 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f) (2015). 3. The criteria for establishing entitlement to service connection for hypertension have not been met. 38 U.S.C.A. §§ 101(2), 1101, 1110, 1112, 1131, 1153, 5103(a), 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f) (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2015). Proper notice from VA must inform the appellant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the appellant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. Letters sent to the appellant in December 2002, May 2009 and December 2010 addressed all notice elements listed under 3.159(b)(1). The letters informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. While the appellant was not provided with the Dingess requirements (specifically, how disability ratings and effective dates are assigned), because the claims are being denied, any question as to the appropriate disability rating or effective date is moot, and there can be no failure-to-notify prejudice to the appellant. See Dingess/Hartman, 19 Vet. App. at 484. Furthermore, the claims were subsequently readjudicated, no prejudice has been alleged, and none is apparent from the record. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant 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). Under these circumstances, the Board finds that the notification requirements have been satisfied as to both timing and content. Adequate notice was provided to the appellant prior to the transfer and certification of his case to the Board that complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Duty to Assist Next, VA has a duty to assist the appellant in the development of the claim. This duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA obtained service treatment records of the Veteran LW. Also, the appellant was scheduled for a VA examination in February 2003, but he failed to report. He was subsequently afforded an examination in June 2009. A copy of this examination report has been associated with the evidence of record. The Board finds that the relevant VA examinations are well-supported by clinical findings and a full rationale. Each examination report reflects a review of the claims file, a pertinent history and all clinical findings and opinions necessary for proper adjudication of the appellant's claim, and is therefore adequate for adjudication purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In November 2014, VA was contacted by the Social Security Administration (SSA) and notified that there were no medical records associated with this appellant. Significantly, neither the appellant nor his representative has identified any additional existing evidence that is necessary for a fair adjudication of the claim that has not yet been obtained. Additionally, the Board finds there has been substantial compliance with its November 2011 remand directives. The Board notes that the Court has held that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268) violation when the examiner made the ultimate determination required by the Board's remand). The record indicates that the Appeals Management Center (AMC) made additional attempts to verify the appellant's identity through the department of corrections, the Social Security Administration (SSA) and the individual identifying himself as the appellant. Three attempts were also made to obtain records from the appellant's correctional facility. The AMC later issued a Supplemental Statement of the Case (SSOC). Based on the foregoing, the Board finds that the AMC substantially complied with the mandates of its remand. See Stegall, supra, (finding that a remand by the Board confers on the appellant the right to compliance with its remand orders). The Board was notified in September 2008 by the appellant's correctional facility that the date of birth and Social Security number provided for the Veteran did not match the information that the facility had on record for the appellant. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Analysis The appellant contends that he is entitled to service connection for a number of disabilities, including a psychiatric disorder such as schizophrenia or PTSD, diabetes mellitus or hypertension. In November 2002, VA received a claim of entitlement to service connection for the disabilities noted on the front page of this decision. The appellant reported his name as DMT, but also stated that he was also known as LW. The appellant contends that he is the Veteran LW who is the subject of a Report of Separation from Active Duty (DD-214) for service in the U.S. Army from December 1973 to April 1975 with a Social Security/Service number shown in the heading of this decision and with a date of birth in October 1955. In an affidavit enclosed in a November 2002 claim for disability compensation and pension, the appellant attested that (1) he was incarcerated in 1983 for a felony conviction with a life sentence, (2) upon arrest he identified himself with the alias DMT with a different Social Security number and date of birth in November 1955 in order to conceal a prior conviction, and (3) the state verified his identity as the Veteran LW using his fingerprints but continued to use the alias DMT on all documents. A state record dated in June 2000 showed that the appellant DMT, alias LW, was convicted of a felony and incarcerated with a life sentence in March 1984. All subsequent evidence provided by the state identified the appellant as DMT with a Social Security number and date of birth different from that of the Veteran. The appellant does not claim nor does the record show that he was granted parole. As discussed below, the evidence of record is insufficient to establish the appellant as the named Veteran. Therefore, service connection cannot be established for any of the claimed disabilities. Service connection is warranted where the evidence of record establishes that a veteran incurred a particular injury or disease resulting in disability in the line of duty in the active military service or, if preexisting such service, was aggravated thereby. 38 U.S.C.A. 1110, 1131 (West 2015); 38 C.F.R. § 3.303(a) (2015). The Board notes that it has thoroughly reviewed the record in conjunction with this case. 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 appellant 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). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must 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). The term "veteran" means a person who served in the active military, naval or air service, and who was discharged or released therefrom under conditions other than dishonorable. 38 U.S.C.A. § 101(2). In the present case, we have an individual who has identified himself as DMT claiming to be the Veteran LW. Despite numerous opportunities and requests for evidence by VA, there is no evidence to suggest that DMT is an individual that served in the active military, naval or air service. This individual has provided VA with conflicting Social Security numbers and birthdates. VA also received a call in May 2010 from an individual identifying themselves as the Veteran and stating that DMT was his cousin and had falsely used his name and Social Security number. The appellant has not provided any information to confirm military service, and as such, all current claims are denied. The Board is not denying that there is evidence of a disability associated with a veteran (LW). According to an April 1980 private treatment note, LW was admitted in February 1980 with a diagnosis of personality disorder, anti-social type. A January 2002 private treatment note also reflects diagnoses of schizophrenia, polysubstance abuse and an antisocial personality. There are also records assigned to DMT (who has not been identified as a veteran). A private treatment note dated May 2009 reflects diagnoses of hypertension and diabetes mellitus, type II. However, DMT has not been recognized as a veteran. The appellant was afforded a VA psychiatric examination in June 2009. The appellant reported that he was fired upon while serving in the Korean DMZ (demilitarized zone). The examiner diagnosed the appellant with schizoaffective disorder - bipolar type, PTSD of delayed onset and cannabis abuse. The appellant's reports regarding PTSD stressors were deemed to be reasonably compelling. In that delayed symptom onset is not unusual with respect to PTSD, the fact that he was not diagnosed with the disorder at the time of discharge from the Army did not disconfirm the presence of the disorder now. The appellant also endorsed schizophrenia, mood swings consistent with some variant of bipolar disorder and diagnoses of such in various corrections settings. The examiner's review of the claims file did not reveal much evidence in this regard. Records from the appellant's time in a correctional facility referred to an individual whose name differs from the appellant's. The examiner was reluctant to render more than a provisional diagnosis with respect to a thought disorder/affective disorder beyond PTSD due to prison-mandated time constraints during the telephone interview. The Board notes that the appellant has provided a number of statements in support of his claims. In a statement dated December 2004, he reported that he suffered from psychiatric symptoms during service due to a belief that he was being harassed for being black. He reported that since leaving the Army, he was guarded and suspicious and that he now suffered extreme depression and anxiety. The appellant also reported in a June 2008 statement that he served on the DMZ while in Korea. During this time, he felt that he was going to be killed and was fearful for his life. He also stated that he felt it would be better for himself and society if he did die. Finally, according to a statement provided in October 2007 by an individual with the initials B.F.L., she knew the appellant to have a long history of mental illness, as well as diabetes and hypertension. Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). When considering whether lay evidence may be competent, the Board must determine, on a case by case basis, whether the appellant's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue. However, the key issue in the present case is that DMT has not provided any credible evidence to demonstrate that he is really LW - an individual with a different birthdate and Social Security number. As such, there is no evidence that he is the veteran in question. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The claims must be denied. ORDER The claim of entitlement to service connection for schizophrenia is denied. The claim of entitlement to service connection for PTSD is denied. The claim of entitlement to service connection for diabetes mellitus is denied. The claim of entitlement to service connection for hypertension is denied. ____________________________________________ WAYNE M. BREAUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs