Citation Nr: 1753801 Decision Date: 11/24/17 Archive Date: 12/01/17 DOCKET NO. 13-20 071 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi 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. 3. Entitlement to service connection for a heart disorder. ATTORNEY FOR THE BOARD B. Berry, Counsel INTRODUCTION The Veteran served on active duty from June 1949 December 1952 and from July 1955 to July 1958. The Veteran died in October 2013. The appellant is the Veteran's surviving spouse. These matters come to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in October 2011 by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The appellant filed for substitution in July 2014, within one year of the Veteran's death, and the RO granted the appellant the right to substitute for the Veteran in pursuit of the claims he had pending (as noted in the January 2016 VA Form 8, Certification of Appeal). See 38 U.S.C. § 5121A (2012). The appellant was notified of this decision in an October 2017 letter from the Board. Thus, the appeal continues. FINDINGS OF FACT 1. The preponderance of the evidence shows that the Veteran had a current diagnosis of PTSD based on the alleged experiences of being POW during active military service during the appeal period; however, the preponderance of the evidence shows that the Veteran was not a POW during active military service and there is no supporting evidence of the claimed stressors. 2. The preponderance of the evidence shows that an acquired psychiatric disability, other than PTSD, did not have its onset in service or is otherwise related to the Veteran's active military service. 3. The preponderance of the evidence shows that the Veteran's heart disorders were not incurred in or aggravated by active military service. CONCLUSIONS OF LAW 1. The criteria for service connection for PTSD are not met. 38 U.S.C. § 1110, 5103, 5103A, 5107(b) (2012); 38 C.F.R. § 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.384 (2017). 2. The criteria for service connection for a psychiatric disorder other than PTSD are not met. 38 U.S.C. § 1110, 5103, 5103A, 5107(b) (2012); 38 C.F.R. § 3.102, 3.159, 3.303, 3.307, 3.309, 3.384 (2017). 3. The criteria for service connection for heart disease are not met. 38 U.S.C. § 1110, 5103, 5103A, 5107(b) (2012); 38 C.F.R. § 3.102, 3.159, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Notice and Assistance Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant 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. § 5103(a)(2012); 38 C.F.R. § 3.159(b) (2017). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: 1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and 2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case). See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). VA letters dated in June 2010 and February 2011 satisfied the duty to notify provisions prior to the initial AOJ decision with respect to the service connection claims for an acquired psychiatric disorder and heart disease. While the June 2010 and February 2011 letters were addressed to the Veteran and not the current appellant, issuance of another notice letter regarding the claims on appeal is not required as the appellant has been substituted for the Veteran. See VBA Fast Letter 10-30 (August 10, 2010) (amended April 3, 2013) (If an adequate VCAA notice letter was previously sent to the original claimant, a new VCAA notice letter will not be provided to the individual requesting substitution). VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). This duty includes obtaining "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.15(c)(4). In this case, VA has fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claim. The claims file contains a certification of military service, private treatment records and lay statements from the Veteran and appellant. Unfortunately, the Veteran's service treatment records and his service personnel records are unavailable for review. It appears that these records most likely were destroyed in a fire at a records storage facility. In a case in which a veteran's service records are unavailable through no fault of his or her own, there is a heightened obligation for VA to assist the veteran in the development of his or her claim and to provide reasons or bases for any adverse decision rendered without these records. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991); Moore v. Derwinski, 1 Vet. App. 401 (1991) (holding that the heightened duty to assist a veteran in developing facts pertaining to her claim in a case in which service medical records are presumed destroyed includes the obligation to search for alternative medical records). A review of the claims folder reveals that VA has fulfilled its heightened duty to assist the appellant. The RO requested the Veteran's service treatment records, service personnel records, and separate documents through the Personnel Information Exchange System (PIES) in June 2010. The RO received a response in June 2010 noting that the records are fire-related. No service treatement records were recovered from the fire. However, PIES was able to furnish an SGO obtained from an alternative records source. With respect to the Veteran's personnel record, PIES determined that the information requested cannot be reconstructed. PIES also noted that there were no separation documents with respect to the Veteran on file. In November 2010, the RO requested information on the Veteran regarding prisoner of war (POW) status to include POW dates and camp of confinement through PIES. The RO received a response through PIES that the records are fire-related and they are unable to provide POW dates. The response also indicated that if the Veteran can furnish the confining country, dates captured and returned to military control, and united attached to when captured as well as unit attached to when returned to military control, a search can be conducted of morning reports. A November 2010 letter to the Veteran informed him of the response the RO received from the request to the service department to verify his service was that the records were fire-related. The RO asked the Veteran to submit an original or certified copy of his Certificate of Release or Discharge from Active Duty or any other discharge documents, military orders, or military award documents that he may have been in his possession. A January 2011 note indicated that the RO contacted the POW coordinator and POW Veterans Service Representative and was informed that the Veteran is not POW status. The RO sent a letter to the Veteran in January 2011 informing him that his service treatment records are unavailable and they may have been destroyed in a fire. In the January 2011 letter, the RO asked the Veteran to submit any service medical records that may be in his possession. The RO also asked the Veteran to complete the enclosed NA Form 13055 so that a thorough search may be made for military medical records. The Veteran filled out part of the form and returned it to the Board. Unfortunately, the Veteran did not provide further additional information than what he had provided in the past. Accordingly, the Board finds the duty to assist has been satisfied with respect to attempts to obtain the Veteran's service records and to verify the Veteran's claimed POW status. Without the necessary information, additional searches would be futile. The Board acknowledges that the RO did not obtain a VA examination or medical opinion in conjunction with the service connection claims; however, such examinations or opinions are not required with respect to these issues. VA must provide an examination with regard to claims for disability compensation when there is competent evidence of a disability (or persistent or recurrent symptoms of a disability) that may be associated with an in-service event, injury, or disease, but there is insufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). In Bardwell v. Shinseki, 24 Vet. App. 36, 39 (2010), the Court held that, while there must be competent evidence of current disability (or symptoms thereof) and an indication (not necessarily from competent evidence) that the current disability relates to service, see Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010); Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010), the in-service event prong of the McLendon test "does not qualify the quality of evidence necessary to meet its threshold." Rather, the evidence must establish that there was an event in service. Id. Here, the evidence does not establish that there was an event in service. There is no supporting evidence of the alleged in-service event of the Veteran being a POW, which is the basis for the service-connection claims for a psychiatric disorder to include PTSD, and a heart disorder. Based on the foregoing, the Board concludes that VA was not required to provide a VA examination or medical opinion in conjunction with the claims on appeal. The appellant has not identified, and the record does not otherwise indicate, any other existing, pertinent evidence that has not been obtained. The record also presents no basis for further development to create any additional evidence to be considered in connection with the matters currently under consideration. Under these circumstances, the Board finds that the appellant is not prejudiced by appellate consideration of the claims on appeal at this juncture, without directing or accomplishing any additional notification and/or development action. II. Analysis Establishing service connection generally requires competent evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Pursuant to 38 C.F.R. § 3.303(b), a claimant may establish the second and third elements by demonstrating continuity of symptomatology for specific chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection for certain identified chronic diseases, to include psychoses and cardiovascular-renal disease , may be established on a presumptive basis by showing that such a disease manifested itself to a compensable degree within a prescribed period following separation from service. 38 U.S.C. §§1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Psychoses include brief psychotic disorder, delusional disorder, psychotic disorder due to general medical condition, psychotic disorder not otherwise specified (NOS), other specified schizophrenia spectrum or other psychotic disorder, schizoaffective disorder, schizophrenia, schizophreniform disorder, and substance-induced psychotic disorder, but not PTSD, depressive, anxiety, or panic disorders. 38 C.F.R. § 3.384 (2017). PTSD The appellant contends that the Veteran has a psychiatric disorder caused by his active military service. The Veteran reported in the May 2010 Application for Compensation Form that he was a prisoner of war (POW) from July 1953 to July 1954 at a POW camp on the Red River in China. He explained that while he was working as a mechanic on the flight line in the Air Force at Hamilton Field Air Force Base, he was summoned to the Provost Officer. He agreed to participate in a CIA covert mission to destroy a downed reconnaissance plane in China. He trained for a week on how to destroy the air plane. He was with a group of nine total men and there were identified by numbers. They were captured on their way to destroy the air plane. While he was a POW he was tortured and witnessed other men being tortured and killed. In the July 2012 notice of disagreement, the Veteran asserted that he had suffered from PTSD since the incidents in service. Service connection for PTSD requires medical evidence establishing a diagnosis of the disorder, credible supporting evidence that the claimed in-service stressor(s) occurred, and a link, established by medical evidence, between current symptomatology and the claimed in-service stressor(s). 38 C.F.R. § 3.304(f). As noted above, in order for a Veteran to be granted service connection for PTSD, the medical evidence must show a diagnosis of PTSD linked to an in-service stressor. A letter from the Veteran's private physician dated in September 2010 reveals that he has treated the Veteran for depression and anxiety. He also determined that the Veteran suffers from posttraumatic stress syndrome due to the CIA mission the Veteran endured. A VA treatment record dated in November 2010 shows that the Veteran was diagnosed with PTSD based on his alleged in-service stressors from being a POW. Therefore, two of the three elements for establishing service connection for PTSD have been satisfied. With regard to the second PTSD element as set forth in 38 C.F.R. § 3.304(f), evidence of an in-service stressor, the evidence necessary to establish the claimed stressor varies depending on the circumstances of the stressor and the nature of a veteran's service. If the evidence establishes that a veteran engaged in combat with the enemy or was prisoner-of-war under the provisions of 38 C.F.R. § 3.1(y) and the claimed stressor is related to that combat or prisoner-of-war experience, 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 U.S.C. § 1154(b); 38 C.F.R. § 3.304(f)(2) and (f)(4). Furthermore, if a Veteran was a POW for more than 30 days, certain listed diseases to include psychosis or any of the anxiety states are presumed to have been incurred in service if they manifest to a compensable degree at any time after service. 38 U.S.C. § 1101, 1110, 1112(b), 1113 (2012), 38 C.F.R. §§ 3.1(y), 3.307(a)(5), 3.309(c) (2017). In this case, the Veteran's alleged stressors are related to being a POW. Unfortunately, the Veteran's service records are unavailable to review. Furthermore, the RO was unable to obtain evidence to support the Veteran's assertion that he was a POW. In this regard, the RO contacted the National Personnel Records Center (NPRC) through PIES in June 2010 in an attempt to obtain the Veteran's service records and received the response that the records are unavailable and most likely fire-related. In November 2010, the RO requested information on the Veteran regarding prisoner of war (POW) status to include POW dates and camp of confinement through PIES. The RO received a response through PIES that the records is fire-related and they are unable to provide POW dates. The RO was informed that if the Veteran can furnish the confining country, dates captured and returned to military control, and united attached to when captured as well as unit attached to when returned to military control, a search can be conducted of morning reports. The RO sent a letter to the Veteran in January 2011 asking him to complete the enclosed NA Form 13055 in detail so that the RO may request a thorough search of military medical records in support of his claim. The Veteran did not provide enough detail in the NA Form 13055 for the RO to conduct further development. The NPRC was able to locate information from the Hospital Admission Card data file created by the Office of the Surgeon General, Department of the Army. Under the Veteran's service number, there was a report that in November 1951 in Japan the service member was seen for tonsillitis, chronic with tonsillectomy and/or adenoidectomy. The report indicates that the place of final treatment was Army Medical Treatment Facility Overseas; Army Hospital and that the Veteran was not evacuated to the United States and he was not a former prisoner of the enemy. The Board also notes that the Veteran was not on active duty during the time period from 1953 to 1954 that he alleged he was a POW. In light of the foregoing, the evidence of record does not establish that the Veteran was a POW. Thus, the presumptions related to POW statues are not applicable in this case and there must be supporting evidence of the alleged in-service stressors in order for service connection to be granted for PTSD. The only evidence substantiating that the Veteran experienced the in-service stressors is his and the appellant's own uncorroborated statements. As the evidence of record does not establish that the Veteran was a POW during his active duty service, the uncorroborated lay assertions are not sufficient to verify a non-combat/POW stressor. See Cohen v. Brown, 10 Vet. App. 128, 138 (1997), and Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). The record must contain service records, lay statements from service members who witnessed the incident, or other corroborative evidence, which substantiates or verifies the Veteran's testimony or statements as to the occurrence of the claimed stressors. Id. There is no credible supporting evidence from personnel records, lay statements from service members, or other corroborating evidence in the record to support the Veteran's contention that any of the claimed events occurred. As none of the Veteran's diagnoses of PTSD were based upon a verified in-service stressor, the claim of service connection for PTSD must be denied. Accordingly, the Board finds that the preponderance of the evidence weighs against the Veteran's claim of entitlement to service connection for PTSD. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (to deny a claim on its merits, the evidence must preponderate against the claim). Therefore, entitlement to service connection for PTSD is not warranted. Other Psychiatric Disorders With respect to the Veteran's service connection claim for a psychiatric disorder, a letter from the Veteran's private physician dated in September 2010 reveals that he has treated the Veteran for depression and anxiety. Furthermore, VA problem list dated in September 2012 includes a diagnosis of depressive disorder, not otherwise specified. Thus, the evidence of record shows that the Veteran has current diagnoses of acquired psychiatric disorders, other than PTSD. As discussed in detail above, the preponderance of the evidence shows that the Veteran was not a POW during active military service. Thus, the presumption relating to POW status with respect the Veteran's anxiety and depressive disorder under sections 3.307(a)(5) and 3.309(c) are not applicable in this case. Regarding whether the Veteran's psychiatric disorders other than PTSD are related to service on a direct basis, as noted above, unfortunately, the Veteran's service treatment records are not available for review. Therefore, there is no contemporaneous medical evidence indicating symptoms or a diagnosis of depression or anxiety during active military service. The first medical documentation of symptoms of anxiety and depression are in the letter from the Veteran's private physician dated in 2010, who indicated that he had been treating the Veteran for various health conditions to include depression and anxiety since 2000, approximately 42 years after the Veteran left military service. The Board notes that the Veteran had asserted that his psychiatric symptoms ("mental anguish") began during military service after he returned from being a POW. See May 2010 claim. Regarding the lay assertions that the Veteran had continuous or recurrent symptoms of an acquired psychiatric disability since military service, the U.S. Court of Appeals for the Federal Circuit recently clarified that the continuity of symptomatology language in section 3.303(b) restricts itself to chronic diseases found in 38 C.F.R. § 3.309(a). Walker, 708 F.3d at 1331 (3.303(b) "is only available to establish service connection for the specific chronic diseases listed in § 3.309(a)"). The Veteran's diagnosis of anxiety and a depressive disorder are not listed as a chronic disease under section 3.309(a) and therefore, the appellant may not establish continuity of symptomatology under 38 C.F.R. § 3.303(b) in lieu of medical nexus. Furthermore, there is no competent evidence of record that indicates the Veteran's anxiety and depressive disorder, are etiologically related to active military service. The Board observes that the Veteran had asserted in the past and the appellant now asserts that the Veteran had a psychiatric disorder related to his POW experience during active military service. Lay persons can provide an account of observable symptoms. See Clyburn v. West, 12 Vet. App. 296, 301 (1999); Caldwell v. Derwinski, 1 Vet. App. 466, 469 (1991). In this case, the diagnosis of a psychiatric disorder and the etiology thereof requires medical expertise. This disorder is not the type of disability as to which lay evidence may be competent. Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"). The Veteran and the appellant are not shown to have special knowledge to provide an etiology opinion with respect to a psychiatric disability. Thus, the lay evidence in this case is not competent and does not show a relationship between the Veteran's current psychiatric disability and his military service. In light of the foregoing, the Board finds that the preponderance of the evidence reveals that the Veteran's acquired psychiatric disorders other than PTSD are not related to active military service. Therefore, the Veteran's claim of entitlement to service connection for an acquired psychiatric disability other than PTSD is not warranted. Heart Disorder In assessing entitlement to service connection for a heart disorder, the evidence must show that the Veteran had a current diagnosis of the claimed disability. VA and private treatment records reveal that the Veteran had a current diagnosis of congestive heart failure, cardiomyopathy, and coronary artery disease (atherosclerotic heart disease) during the appeal period. The Board observes that the appellant contends that the Veteran's experience as a POW to include prolonged malnutrition caused or contributed to his heart disorders. Under VA regulations if a Veteran is a former POW, atherosclerotic heart disease and its complications (including myocardial infarctions and congestive heart failure) that are manifested to a degree of disability of 10 percent or more at any time after discharge or release from active military service shall be service-connected. As discussed in detail above, the Board finds that the preponderance of the evidence is against a finding that the Veteran was a POW; thus, service connection for congestive heart failure and coronary artery disease, on a presumptive basis, is not warranted. With respect to whether service connection may be granted on a direct basis for a heart disorder, the Veteran's service records are unavailable. There is no evidence that the Veteran had a heart disorder in service or within one year of discharge from service. Furthermore, the appellant has not asserted that the onset of the Veteran's heart disorder began during active military service or within one year of discharge from service. The first medical documentation in the claims file of a diagnosis of a heart disorder is in 2003. As there is no evidence of a heart disorder shown in service or within one year of discharge from service, the threshold question is whether there is sufficient medical evidence to establish an etiological link between the Veteran's current heart disorder and his active military service. In this regard, there is no competent and probative medical opinion of record that links the Veteran's heart disorder to active military service. The Board observes a letter from the Veteran's private physician dated in June 2012 asserted that the Veteran's prolonged malnutrition may have been a contributing factor to his cardiomyopathy. The physician prefaced his opinion with "may," which is equivocal and speculative as to whether cardiomyopathy is related to the Veteran's alleged malnutrition as a POW. The Court has held that medical opinions, which are speculative, general or inconclusive in nature, cannot support a claim. See Hood v. Shinseki, 23 Vet. App. 295, 298-99 (2009); Bloom v. West, 12 Vet. App. 185, 187 (1999) (term "could" without other rationale or supporting data was speculative); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (medical evidence which merely indicates that the alleged disorder "may or may not" exist or "may or may not" be related, is too speculative to establish the presence of the claimed disorder or any such relationship). Furthermore, the medical opinion is based on the Veteran's lay statements of his experiences as a POW. As the Board has determined above, the preponderance of the evidence shows that the Veteran was not a POW during active military service and therefore, any diagnosis of a heart disorder related to the alleged incidents of being a POW do not constitute probative evidence with respect to the matter of whether a heart disorder is related to active military service. The Board recognizes that the appellant asserts that the Veteran's heart disorder is related to active military service. Lay persons can provide an account of observable symptoms. See Clyburn v. West, 12 Vet. App. 296, 301 (1999); Caldwell v. Derwinski, 1 Vet. App. 466, 469 (1991). In this case, the diagnosis of a heart disorder and the etiology thereof requires medical expertise. This disorder is simply not the type of disability for which lay evidence may be competent. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis). The appellant has not asserted, and the evidence does not otherwise show, that she has special knowledge to provide an etiology opinion with respect to the Veteran's heart disorder. Thus, the lay evidence offered by the Veteran and the appellant is not competent and does not show a relationship between the Veteran's heart disorder and his military service. Based on the foregoing, the Board finds that the preponderance of the evidence shows that the Veteran's heart disorder is not related to active military service. Therefore, the claim of entitlement to service connection for a heart disorder is not warranted. Conclusion In making the above findings, the Board is cognizant of its heightened duties to assist, to provide reasons and bases for its findings and conclusions, and to consider carefully the benefit-of-the-doubt rule. As noted above, extensive efforts have been made to obtain evidence in support of the assertion of POW status and a remand for further, similar efforts would be futile and would prolong the case with no benefit flowing to the appellant. Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (noting that "[a] veteran's interest may be better served by prompt resolution of his claims rather than by further remands to cure procedural errors that, at the end of the day, may be irrelevant to final resolution and may indeed merely delay resolution"). While the Board is sympathetic to the appellant and acknowledges the distinguished service of the Veteran, the above reflects that there is no evidence at this time to support the Veteran's assertion that he was a POW. As the preponderance of the evidence is against POW status, and the claims are primarily based on this status, the benefit of the doubt doctrine, although carefully considered, is not for application. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for PTSD is denied. Entitlement to service connection for an acquired psychiatric disorder is denied. Entitlement to service connection for heart disorder is denied. ____________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs