judge_norm: JOAQUIN AGUAYO-PERELES

condition: gi

text:
Citation Nr: 0802000
Decision Date: 01/17/08    Archive Date: 01/29/08

DOCKET NO.  03-23 556	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los
Angeles, California

THE ISSUE

Entitlement to an initial evaluation in excess of 30 percent
for ulcerative colitis prior to May 30, 2003, and in excess
of 60 percent therefrom.

REPRESENTATION

Appellant represented by:	The American Legion

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

Eric S. Leboff, Counsel

INTRODUCTION

The veteran had active service from December 1980 until
December 2000.

This matter comes before the Board of Veterans' Appeals (BVA
or Board) from a May 2001 rating decision of the Department
of Veterans Affairs (VA), Regional Office (RO) in Los
Angeles, California.

This matter was previously before the Board in February 2007.
At that time, a remand was ordered.  Specifically, it was
noted that while the veteran had provided testimony at a
hearing before a Veterans Law Judge in August 2004, that
Veterans Law Judge had subsequently left the Board.  In
correspondence received in January 2007, the veteran had
expressed his desire for a new hearing.  Such hearing was
ultimately conducted by the undersigned in September 2007.

In September 2007, after the appeal had been certified to the
Board, the veteran submitted additional evidence in support
of his claim.  Such evidence was accompanied by a waiver of
Agency of Original Jurisdiction (AOJ) consideration.
Accordingly, the Board may proceed with appellate review at
this time.

It is also noted that a September 2007 statement from the
veteran appears to raise a claim of entitlement to service
connection for vision problems caused by use of medication
taken to control symptoms of his service-connected
disabilities.  This claim has not yet been adjudicated.  As
such, it is referred back to the RO for appropriate action.

FINDINGS OF FACT

1.  Prior to May 30, 2003, the competent evidence reveals
ulcerative colitis manifested by constipation alternating
with diarrhea, and episodes of abdominal pain; the evidence
did not reveal malnutrition.

2.  From May 30, 2003, the competent evidence reveals weight
loss, mild malnutrition, and continued complaints of diarrhea
and abdominal pain; there is no evidence of marked
malnutrition and no objective diagnoses of anemia.

CONCLUSION OF LAW

The criteria for entitlement to an initial evaluation in
excess of 30 percent prior to May 30, 2003, and in excess of
60 percent therefrom have not been met.  38 U.S.C.A. �� 1155,
5103A, 5107(b) (West 2002); 38 C.F.R. �� 3.102, 3.159, 4.114,
Diagnostic Code 7323 (2007).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

As provided for by the Veterans Claims Assistance Act of 2000
(VCAA), VA has a 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. 2007);
38 C.F.R. �� 3.102, 3.156(a), 3.159 and 3.326(a) (2007).

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 any medical or lay evidence, that is
necessary to substantiate the claim.  38 U.S.C.A. � 5103(a);
38 C.F.R. � 3.159(b); Quartuccio v. Principi, 16 Vet. App.
183 (2002).

Proper notice from VA 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;
(3) that the claimant is expected to provide; and (4) must
ask the claimant to provide any evidence in her or his
possession that pertains to the claim 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 of the VCAA apply to all
five elements of a service-connection claim, including: (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.  See Dingess/Hartman v. Nicholson, 19 Vet. App.
473 (2006).  Further, this notice must include notice that a
disability rating and an effective date for the award of
benefits will be assigned if service connection is awarded.
Id. at 486.

VCAA notice errors are presumed prejudicial unless VA shows
that the error did not affect the essential fairness of the
adjudication.  To overcome the burden of prejudicial error,
VA must show (1) that any defect was cured by actual
knowledge on the part of the claimant; (2) that a reasonable
person could be expected to understand from the notice what
was needed; or, (3) that a benefit could not have been
awarded as a matter of law.  See Sanders v. Nicholson, 487
F.3d 881 (Fed. Cir. 2007).

Here, the veteran is challenging the initial evaluation and
effective date assigned following the grant of service
connection.  In Dingess, the Court of Appeals for Veterans
Claims held that in cases where service connection has been
granted and an initial disability rating and effective date
have been assigned, the typical service-connection claim has
been more than substantiated, it has been proven, thereby
rendering � 5103(a) notice no longer required because the
purpose that the notice is intended to serve has been
fulfilled. Id. at 490-91.  Thus, because the notice that was
provided before service connection was granted was legally
sufficient, VA's duty to notify in this case has been
satisfied.

Here, the duty to notify was not satisfied prior to the
initial unfavorable decision on the claim by the RO.  Under
such circumstances, VA's duty to notify may not be
"satisfied by various post-decisional communications from
which a claimant might have been able to infer what evidence
the VA found lacking in the claimant's presentation."

Rather, such notice errors may instead be cured by issuance
of a fully compliant notice, followed by readjudication of
the claim.  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 issuance of a
fully compliant VCAA notification followed by readjudication
of the claim, such as an SOC or SSOC, is sufficient to cure a
timing defect).

In this case, the VCAA duty to notify was satisfied
subsequent to the initial RO decision by way of a letter sent
to the appellant in May 2005 that fully addressed all four
notice elements.  The letter informed the appellant of what
evidence was required to substantiate the claim and of the
appellant's and VA's respective duties for obtaining
evidence.

It is unclear from the record whether the appellant was
explicitly asked to provide "any evidence in his possession
that pertains" to his claim.  See 38 C.F.R. � 3.159(b)(1).
Nevertheless, as a practical matter the Board finds that he
has been notified of the need to provide such evidence, for
the following reasons.  The AOJ letters noted above informed
him that additional information or evidence was needed to
support his claim, and asked him to send the information or
evidence to the AOJ.  Under these circumstances, the Board is
satisfied that the appellant has been adequately informed of
the need to submit relevant evidence in his possession.

Although the notice letter was not sent before the initial RO
decision in this matter, the Board finds that the actions
taken by VA after providing the notice have essentially cured
the error in the timing of notice.  Not only has the
appellant been afforded a meaningful opportunity to
participate effectively in the processing of his claim and
given ample time to respond, but the RO also readjudicated
the case by way of a supplemental statement of the case
issued in May 2006 after the notice was provided.

Thus, while the timing of the VCAA notice is presumed to be
prejudicial, VA has overcome the burden of prejudicial error
by giving the veteran actual notice of what was needed to
support his claim.  The purpose behind the notice requirement
has been satisfied and the veteran has been afforded a
meaningful opportunity to participate effectively in the
processing of his claim.

With respect to the Dingess requirements, the claimant was
given notice of what type of information and evidence he
needed to substantiate his claim for an increased rating as
this is the premise of the claim.  It is therefore inherent
in the claim that the veteran had actual knowledge of the
rating element of his claim.  In addition, he was provided
with notice of the type of evidence necessary to establish an
effective date for the disability on appeal by correspondence
dated in March 2006.  Any questions as to the appropriate
effective date to be assigned are moot as the claim has been
denied.

Based on the foregoing, adequate notice was provided to the
appellant prior to the transfer and certification of the
veteran's case to the Board and complied with the
requirements of 38 U.S.C. � 5103(a) and 38 C.F.R. � 3.159(b).

Next, VA has a duty to assist the veteran in the development
of the claim.  This duty includes assisting the veteran 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).  The claims file contains the veteran's
post-service reports of VA and private treatment and
examination.  Moreover, the veteran's statements in support
of his claim are of record, including testimony provided at
an August 2004 Board hearing and again at a September 2007
hearing before the undersigned.  The Board has carefully
reviewed such statements and concludes that he has not
identified further evidence not already of record.  The Board
has also perused the medical records for references to
additional treatment reports not of record, but has found
nothing to suggest that there is any outstanding evidence
with respect to the veteran's claim.

For the reasons discussed above, no further notice or
assistance to the appellant is required to fulfill VA's duty
to assist the appellant 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).

Discussion

The Board has reviewed all of the evidence in the veteran's
claims file, with an emphasis on the medical evidence for the
rating period on appeal.  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 of record.  Indeed, the Federal Circuit
has held that the Board must review the entire record, but
does not have to discuss each piece of evidence.  Gonzales v.
West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Therefore,
the Board will summarize the relevant evidence where
appropriate, and the Board's analysis below will focus
specifically on what the evidence shows, or fails to show, as
to each claim.

The veteran is claiming entitlement to an increased rating
for ulcerative colitis.  Disability ratings are determined by
applying the criteria set forth in the VA's Schedule for
Rating Disabilities (rating schedule), which is based upon
the average impairment of earning capacity.  Individual
disabilities are assigned separate diagnostic codes.  See
38 C.F.R. � 4.1.  In addition, where there is a question as
to which of two evaluations shall be applied, the higher
evaluation will be assigned if the disability picture more
nearly approximates the criteria required for that rating.
Otherwise, the lower rating will be assigned.  See 38 C.F.R.
� 4.7 (2007).

In determining whether a claimed benefit is warranted, VA
must determine whether the evidence supports the claim or is
in relative equipoise, with the veteran prevailing in either
event, or whether the preponderance of the evidence is
against the claim, in which case the claim is denied.
38 U.S.C.A. � 5107(a); Gilbert v. Derwinski, 1 Vet.App. 49
(1990).

Moreover, an appeal from the initial assignment of a
disability rating, such as this case, requires consideration
of the entire time period involved, and contemplates staged
ratings where warranted.  See Fenderson v. West, 12 Vet. App.
119 (1999).

Throughout the rating period on appeal, the veteran's
ulcerative colitis has been evaluated under Diagnostic Code
7323.

It is noted that during the pendency of the appeal, on July
2, 2001, the schedular criteria for digestive disorders under
38 U.S.C.A. � 4.114 underwent revision.  However, Diagnostic
Code 7323 was unaffected by such changes.

The Board will first consider whether the veteran is entitled
to an initial rating in excess of 30 percent prior to May 30,
2003.

Under Diagnostic Code 7323, a 30 percent evaluation is
warranted where the evidence shows moderately severe
ulcerative colitis, with frequent exacerbations.  In order to
achieve the next-higher 60 percent rating, the evidence must
show severe ulcerative colitis with numerous attacks per year
and malnutrition, with health only fair during remissions.

The Board has reviewed the evidence of record during the
period in question.  Such evidence includes a December 2000
fee basis VA examination.  At that time the veteran reported
difficulty with constipation alternating with diarrhea.  Such
symptoms were intermittent.  He also reported episodes of
abdominal discomfort that occurred as often as once a week.
Such episodes could last for one to two hours, or for an
entire day.  He stated that his most recent Crohn's episode
lasted four months.

Objectively, the December 2000 fee basis VA examination
revealed a soft and nontender abdomen, without
hepatosplenomegaly.  There was no distention and no masses
were palpated.

The findings indicated upon VA examination in December 2000
do not support assignment of a rating in excess of 30 percent
under Diagnostic Code 7323.  Indeed, there were no objective
findings of severe ulcerative colitis and there was no
demonstration of malnutrition.

The Board acknowledges the veteran's complaints of flare-ups
manifested by abdominal discomfort.  He indicated that such
attacks were frequent.  In this regard,
the Board notes that the veteran is competent to report
symptoms because this requires only personal knowledge, not
medical expertise, as it comes to him through his senses.
Layno v. Brown, 6 Vet. App. at 470.  While competent, the
Board must also evaluate the credibility of the veteran's
statements.  See Washington v. Nicholson, 19 Vet. App. 362,
368-69 (2005).

In the present case, the Board finds no reason to doubt the
veteran's reported symptomatology.  Indeed, his reported
symptoms are consistent with subsequent medical evidence of
record.  However, even though credible, his report of
frequent flare-ups does not warrant assignment of the next-
higher 60 percent rating under Diagnostic Code 7323 for the
period prior to May 30, 2003.  Indeed, while frequent, there
was no elaboration as to the severity of the attacks.
Significantly, frequent but moderate flare-ups would be
consistent with the currently assigned 30 percent evaluation
and would not justify an increase to 60 percent, which
contemplates only severe ulcerative colitis.  More
importantly, the absence of evidence demonstrating
malnutrition precludes assignment of a higher rating under
Diagnostic Code 7323 during the period in question.

The Board has also considered whether any alternate
Diagnostic Cods could serve as a basis for a higher rating
here.  In this regard, Diagnostic Code 7319, for irritable
colon syndrome, is relevant to the veteran's disability
picture.  However, both before and as of the schedular
revisions effective July 2, 2001, Diagnostic Code 7319
affords a maximum rating of 30 percent.  As such, that Code
section cannot serve as a basis for an increased rating in
the present case.  There are no other relevant Diagnostic
Codes for consideration.

For the foregoing reasons, an initial rating in excess of 30
percent prior to May 30, 2003, is not justified.

The Board will now consider whether a rating in excess of 60
percent is warranted for the period beginning May 30, 2003.

Again, a 60 percent rating under Diagnostic Code 7323 applies
where the evidence shows severe ulcerative colitis with
numerous attacks per year and malnutrition, with health only
fair during remissions.  In order to be entitled to the next-
higher 100 percent evaluation, the evidence must demonstrate
pronounced ulcerative colitis, resulting in marked
malnutrition, anemia, and general debility, or with serious
complication as liver abscess.

The Board has reviewed the competent evidence during the
period in question and finds no support for a 100 percent
rating under Diagnostic Code 7323.  Private consultation
notes dated in 2003 reveal complaints of weakness and nausea.
In a May 2003 report, the veteran reported having bowel
movements every 1.5 hours.  He denied vomiting or anorexia.
Objectively, there was mild abdominal tenderness in the right
lower quadrant, with no rebounding or guarding.  A July 2003
private progress note indicated complaints of alternating
diarrhea and constipation.

The symptoms detailed above do not indicate a disability
picture that most nearly approximates the criteria for the
next-higher 100 percent rating under Diagnostic Code 7323.
Indeed, such evidence fails to demonstrate marked
malnutrition, anemia, and general debility, or serious
complications such as liver abscess.

Further records show that the veteran experienced an acute
exacerbation of his ulcerative colitis in November 2005,
requiring hospitalization.  It was noted that he had
undergone a colonoscopy the previous month, and that since
that time his diarrhea had worsened.  Another record dated in
November 2005 indicated vomiting.

A VA examination in January 2006 indicated a 40-pound weight
loss since his November 2005 hospitalization.  He also
reported that his ulcerative colitis symptoms caused him to
soil his clothing about four times per month, when he was
unable to get to a bathroom.  His condition caused him to
have frequent absences from work.  Moreover, he was only able
to work four hours per day.

Objectively, bowel sounds were diminished and there was
marked tenderness over the left and right lower quadrants of
the abdomen.  The examiner, after reviewing the claims
folder, remarked that the veteran had not been able to
maintain a sustained remission of his ulcerative colitis
since its onset.  His symptoms of diarrhea, bloody stools,
and abdominal cramping were constant.

Again, the symptoms described above do not reveal a
disability picture most nearly approximating the criteria for
the next-higher 100 percent rating under Diagnostic Code
7323.  The evidence of weight loss is acknowledged.  However,
malnutrition is contemplated in the currently assigned 60
percent rating.  The evidence of record does not show such
malnutrition to be marked in nature, as would be required for
a 100 percent rating assignment.  Indeed, the veteran's
malnutrition was described as mild in a November 2006
treatment record.

Additional medical evidence reveals further surgical
treatment in April and July of 2006.  A November 2006 private
health record indicated symptoms of chronic and severe
diarrhea.  The veteran also reported that since his recent
surgeries he had been losing more weight.  He reported a
decreased appetite and stated that he felt full very quickly.

Also of record are transcripts of the veteran's hearing
testimony in August 2004 and September 2007.  At his August
2004 hearing, he endorsed symptoms including diarrhea,
constipation, bloody stools and stomach aches.  At his
September 2007 hearing, the veteran reported weight loss of
40 to 50 pounds.  He also stated that his recent blood tests
revealed low hemoglobin levels, a sign of anemia.  Such blood
tests are of record, and do indicate low hemoglobin.

The Board acknowledges the blood tests reflecting low
hemoglobin levels.  Again, the veteran has testified that
such findings indicate that he is anemic.  However,
he has not been shown to possess the requisite training or
credentials needed to render a competent opinion as to
medical causation.  As such, his lay opinion does not
constitute competent medical evidence and lacks probative
value.  See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95
(1992).  Indeed, there may be any number of reasons behind
the veteran's low hemoglobin levels, and the Board is not
competent to interpret medical evidence.  Significantly, none
of the competent evidence of record diagnoses the veteran
with anemia.  Moreover, even if the evidence of record could
be favorably construed so as to enable a finding of anemia, a
100 percent rating would still not be appropriate here, since
there is no evidence of marked malnutrition, general
debility, or serious complication such as liver abscess.

Based on the foregoing, there is no support for assignment of
a rating in excess of 60 percent under Diagnostic Code 7323
for the veteran's ulcerative colitis for any portion of the
rating period on appeal.  Moreover, there are no relevant
alternate Diagnostic Codes that could provide a higher
rating.  As already explained, Diagnostic Code 7319 affords a
maximum benefit of 30 percent.  Moreover, even if the
veteran's disability is deemed analogous to impairment of
sphincter control under Diagnostic Code 7332, extensive
leakage and fairly frequent involuntary bowel movements
warrant a 60 percent rating, which is no higher than the
veteran's present evaluation.  The 100 percent rating under
that Code section, for complete loss of sphincter control, is
not analogous to the veteran's disability picture and thus a
higher rating will not be assigned on that basis.

In conclusion, for the period prior to May 30, 2003, there is
no support for an initial rating in excess of 30 percent.
From May 30, 2003, there is no support for an initial rating
in excess of 60 percent.  As the preponderance of the
evidence is against the claim, the benefit of the doubt rule
is not applicable.  See 38 U.S.C.A. � 5107(b); Gilbert v.
Derwinski, 1 Vet. App. 49, 54-56 (1990).

Finally, the evidence does not reflect that the disability at
issue caused marked interference with employment (i.e.,
beyond that already contemplated in the assigned evaluation),
or necessitated any frequent periods of hospitalization, such
that application of the regular schedular standards is
rendered impracticable.  Hence, assignment of an extra-
schedular evaluation under 38 C.F.R. � 3.321 (2007) is not
warranted.

ORDER

Entitlement to an increased initial rating for ulcerative
colitis, evaluated as 30 percent disabling prior to May 30,
2003, and as 60 percent disabling therefrom, is denied.

____________________________________________
JOAQUIN AGUAYO-PERELES
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


series: legacy

judge_norm: MARK F HALSEY

disposition: denied

condition: psychiatric

text:
Citation Nr: 0804000
Decision Date: 02/05/08    Archive Date: 02/12/08

DOCKET NO.  05-29 529	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee,
Wisconsin

THE ISSUES

1.  Entitlement to service connection for post-traumatic
stress disorder (PTSD).

2.  Whether new and material evidence has been received to
reopen a claim of entitlement to service connection for a
psychiatric disorder other than PTSD.

REPRESENTATION

Appellant represented by:	Darla J. Lilley, Attorney at
Law

ATTORNEY FOR THE BOARD

A. Muhlfeld, Associate Counsel

INTRODUCTION

The veteran had active military service from August 1965
through August 1968.

This matter comes before the Board of Veterans' Appeals
(Board) on appeal of May 2003 and July 2006 rating decisions
by the Department of Veterans Affairs (VA) Regional Office
(RO) in Milwaukee, Wisconsin.

The Board notes that a September 1995 rating decision denied
a claim of service connection for a nervous disorder or PTSD.
The veteran was notified of the denial, but did not appeal.
Consequently, new and material evidence is required to reopen
either claim.  38 C.F.R. � 3.156 (2007).  The Board now finds
that new and material evidence sufficient to reopen the PTSD
claim has been received.  This is so because this disability
was shown only as a probable diagnosis when the RO denied the
claim in September 1995 and because evidence received
thereafter includes more clearly articulated clinical
assessments of PTSD.  The decision below therefore addresses
this claim de novo.  As for the claim of service connection
for psychiatric disability other than PTSD, the decision
below addresses the application to reopen this previously
denied claim.

As an initial matter, the Board notes that the veteran's
attorney has argued that VA physicians are not complying with
VHA Directive 2000-029, Provision of Medical Opinions by VA
Health Care Practitioners, because the veteran's treating
physician declined to provide an opinion as to whether the
veteran's PTSD was related to military combat.  In this
regard, the Board notes that in a November 2003 letter, the
veteran himself noted that he had repeatedly requested a
medical opinion from his treating physician and his physician
declined to provide the opinion.  The RO and Board are not in
a position to compel the veteran's treating physician to
provide an opinion; rather, the physician can provide a nexus
opinion at his/her discretion.  As noted in VHA directive
2000-029, "if the health care provider is the veteran's
treating physician, and is unable, or deems it inappropriate,
to provide an opinion or statement, such physician shall
refer the veteran's request to another health care provider
for the opinion or statement."  Here, although the veteran's
treating VA physician did not provide the medical opinion,
the veteran was afforded a VA examination in April 2003 where
an opinion was provided on the question of whether the
veteran had PTSD.

FINDINGS OF FACT

1.  The veteran does not have PTSD related to military
service.

2.  By way of a September 1995 rating decision, the RO denied
service connection for a nervous condition; the veteran did
not appeal.

3.  Evidence received since the September 1995 rating
decision, is new to the record, but does it raise a
reasonable possibility of substantiating the claim of service
connection for psychiatric disability other than PTSD.

CONCLUSIONS OF LAW

1.  The veteran does not have PTSD that is the result of
disease or injury incurred in or aggravated by active
military service.  38 U.S.C.A. �� 1110, 5107 (West 2002);
38 C.F.R. �� 3.102, 3.303, 3.304 (2007).

2.  New and material evidence sufficient to reopen the
veteran's claim of entitlement to service connection for a
psychiatric disorder other than PTSD has not been received.
38 U.S.C.A. �� 1110, 5108 (West 2002); 38 C.F.R. �� 3.303,
3.156 (2007).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Veterans Claims Assistance Act of 2000

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. 2007); 38 C.F.R.
�� 3.102, 3.156(a), 3.159 and 3.326(a) (2007).

Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his representative of any information, and any
medical or lay evidence, that is necessary to substantiate
the claim.  38 U.S.C.A. � 5103(a); 38 C.F.R. � 3.159(b);
Quartuccio v. Principi, 16 Vet. App. 183 (2002).  The VCAA
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; (3) that the
claimant is expected to provide; and (4) must ask the
claimant to provide any evidence in his possession that
pertains to the claim in accordance with 38 C.F.R.
� 3.159(b)(1).  VCAA notice should be provided to a claimant
before the initial unfavorable agency of original
jurisdiction (AOJ) decision on a claim.  Pelegrini v.
Principi, 18 Vet. App. 112 (2004).

The Board notes that although the VCAA has changed the
standard for processing veterans' claims, the VCAA has left
intact the requirement that new and material evidence be
received in order to reopen a previously and finally denied
claim under 38 U.S.C.A. � 5108.  It is specifically noted
that nothing in the Act shall be construed to require the
Secretary to reopen a claim that has been disallowed except
when new and material evidence is presented or secured, as
described in 38 U.S.C.A. � 5108.  See 38 U.S.C.A. � 5103A(f).

The Board notes that the veteran was apprised of VA's duties
to both notify and assist in correspondence dated in January
2003, April 2003 and March 2006.  (Although the complete
notice required by the VCAA was not provided until after the
RO adjudicated the appellant's PTSD claim, "the appellant
[was] provided the content-complying notice to which he [was]
entitled."  Pelegrini, 18 Vet. App. at 122.  Consequently,
the Board does not find that the late notice under the VCAA
requires remand to the RO.  Nothing about the evidence or any
response to the RO's notification suggests that the case must
be re-adjudicated ab initio to satisfy the requirements of
the VCAA.)

Specifically regarding VA's duty to notify, the notifications
to the veteran apprised him of what the evidence must show to
establish entitlement to the benefits sought, what evidence
and/or information was already in the RO's possession, what
additional evidence and/or information was needed from the
veteran, what evidence VA was responsible for getting, and
what information VA would assist in obtaining on the
veteran's behalf.  The RO specifically requested that the
veteran identify any evidence or information he had
pertaining to his claim.  The veteran was apprised of the
criteria for assigning disability ratings and for award of an
effective date, see Dingess/Hartman v. Nicholson, 19 Vet.
App. 473 (2006), and he was informed of the requirement that
new and material evidence must be received in order to reopen
a claim, and he was told what was required to substantiate
the underlying service connection claim.  Kent v. Nicholson,
20 Vet. App. 1 (2006).

Regarding VA's duty to assist, the RO obtained the veteran's
service medical records (SMRs), personnel records, VA and
private medical records, Social Security Administration (SSA)
records, and secured examinations in furtherance of his
claim.  VA has no duty to inform or assist that was unmet.

II. Background

A psychiatric evaluation conducted in December 1994 by J.L,
M.D. of the Monroe Clinic, department of psychiatry, noted
that the veteran had complained of anxiety attacks since
Vietnam, and noted that he had had 32 jobs since returning
from Vietnam.  The examiner stated that the veteran
complained mostly about panic attacks, when he felt like
everything was closing in on him, and he felt afraid and
insecure, and like he has claustrophobia.  The veteran noted
that he served on a Navy destroyer, and in the past he had
nightmares and cold sweats and flashbacks about hearing guns
and having headaches from the guns firing.  The examiner
noted that he asked the veteran about physical and sexual
abuse, and he said that his older brother had sex with him
when he was about 8 or 9 years old, and stated that he had
flashbacks about that, and he is jumpy about that sometimes,
although he did not feel that it changed his life.  The
examiner commented that between the destroyer, the guns, the
noises, the nightmares, the flashbacks, and the sexual abuse
by his brother, that there was "probably" a diagnosis of
PTSD.  The examiner, Dr. L., gave the veteran a DSM-IV axis I
diagnosis of PTSD and panic disorder.

The veteran was afforded a VA PTSD examination in May 1995.
The veteran presented reporting that he had anxiety for as
long as he could remember, but could not remember if the
anxiety preceded his Vietnam service.  He stated that the
anxiety attacks lasted up to two hours and occurred about
every other day, and involved sweating, tearfulness,
shortness of breath, tachycardia and a diffuse tingling
sensation.  The veteran stated that he had 26 jobs since his
discharge from the service, and did not seek help because of
his pride.  He reported that his attacks occurred randomly
and were not usually initiated by any particular situation or
event, but usually occurred at night.  In conjunction with
his anxiety attacks, the veteran reported some loss of sleep
averaging approximately four to five hours per night and
reported anhedonia and decreased energy and concentration.

On examination, the examiner stated that he was alert and
oriented to person, place and time, his speech was normal in
tone, rhythm and speed, his thought content revealed evidence
of passive suicidal ideation, no homicidal ideation, and his
thought processes were logical, coherent and cohesive, and
there was no evidence of auditory or visual hallucinations,
but the veteran had some symptoms of increased arousal,
including irritability, angry outbursts and an exaggerated
startle response.  The examiner also noted that the veteran
seemed to have some feelings of estrangement and difficulty
with relationships with people outside of his family.  Based
on his symptoms, the examiner concluded that the veteran did
not fill the diagnostic criteria for PTSD because he did not
re-experience traumatic events or associate current events
with past trauma.  However, the examiner stated that he did
meet the criteria for panic disorder without agoraphobia and
the symptoms of his panic disorder seem to have led to a
significant impact on his ability to work; and in addition,
the examiner noted that he met the criteria for dysthymia and
that this had some impact on his work and his relationships.

A November 1995 psychiatric evaluation by D.R., D.O. of the
Monroe Psychiatric Clinic, gave the veteran an Axis I
diagnosis of dysthymia, and PTSD, residual type.  At this
examination, the veteran noted that he had flashbacks and
paranoia for a couple of years after Vietnam, but had not
experienced flashbacks for about 15 years, and denied current
auditory or visual hallucinations.  The veteran denied having
problems with most symptoms of PTSD other than irritability,
outbursts of anger, difficulty concentrating and exaggerated
startle.

On examination, the veteran admitted to being a little more
depressed for the last five months knowing that he was stuck
with his job but needed to be able to make good money.  The
veteran stated that he was concerned that if he quit his job,
he would lose his wife, and also stated that he had been
having crying jags 2-3 times a week and was encouraged by his
wife to come back in for treatment.  He denied symptoms of
psychosis or paranoia, and denied suicidal ideas.  The
examiner stated that he did not note obvious deficits in
concentration or memory during the examination.

Additional progress notes from the Monroe Clinic dated from
January 1995 through July 1999, contain diagnoses of PTSD,
residual type and depressive disorder, panic and avoidance,
dysthymia, and personality disorder, with dependent,
avoidant, and borderline features.

Progress notes from the Shullsburg clinic dated from June
1997 through May 2002 note PTSD, and reference the various
medications the veteran was taking for his PTSD and anxiety;
however, the records do not mention the etiology of his PTSD
and anxiety.

Outpatient treatment records dated from June 2001 through
October 2003, contain diagnoses of PTSD and anxiety disorder,
and a discharge summary dated in June 2001 noted that the
veteran presented to urgent care with suicidal ideation,
which seemed to be related to a renewal of a trucking job
that increased his anxiety.  The examiner gave the veteran an
axis I diagnosis of adjustment disorder with anxiety,
suicidal ideation, depression, and chronic PTSD, and assigned
a GAF of 45, noting that the veteran had long standing
anxiety disorder, associated with multiple traumas, and was
stressed by a new job that required him to be away from home
for more extended periods of time, thus depriving him of
sufficient access to reassuring support.

The veteran was afforded another VA PTSD examination in April
2003.  The examiner noted that the veteran was being treated
at the Madison VA Hospital mental health clinic for various
diagnoses, including a history of an adjustment disorder not
otherwise specified, anxiety disorder not otherwise
specified, and a history of PTSD.  The veteran described
episodes of increased anxiety that occurred particularly when
he was by himself.  He noted that these symptoms lasted for
about 20 minutes and then went away, and he stated that he
had episodes two times in the last year, noting that one
occurred right after he was laid off work.  In regards to his
time spent in the military, the veteran stated that he was a
Boatswain's mate which entailed moving the gun directions up,
down, and to the side, and stated that they typically did
shore bombings, and he never knew what they hit.  He also
described an occasion where Vietcong were shooting over his
head, and he realized that his ship was in too close and
within their range.  The veteran denied that his ship was
ever hit, though he did recall hearing that another ship got
hit at one point, but he denied ever seeing another ship get
hit.  The veteran also noted that he often wondered how
people died from the bombing done by his ship.  He denied
having any intrusive thoughts related to any of his service
or military experiences, and although he acknowledged having
some nightmares, he said that he had not had any nightmares
in several years, and when specifically asked, he stated that
he did not have any nightmares of combat and denied any fears
that he would be killed.  The examiner noted that the
veteran's report to him at the examination was in direct
contrast to a letter that he wrote dated in May 2002, where
the veteran described the nightmares that had a negative
effect on him, and also described thirty years of haunting
war and recurring dreams.

On examination, the examiner noted that the veteran did have
symptoms consistent with a DSM-IV diagnosis of panic disorder
without agoraphobia, and opined that the veteran did not have
symptoms of PTSD related to his service experience.
Specifically, the examiner explained that he did not have
intrusive thoughts, nightmares, or episodes of reliving, and
did not have avoidant symptoms.  The examiner noted that
although the veteran described intrusive thoughts on his
letter dated in May 2002 (although he did not specify what
of), at this examination, the veteran denied any intrusive
thoughts.  However, the veteran did describe a history of
treatment for intrusive thoughts related to sexual activity
between him and his brother when he was a child.  The veteran
stated that in the past he had experienced intrusive thoughts
related to his experiences of sexual activity with his
brother, but stated that since his treatment those thoughts
were mostly forgotten, and he no longer continued to have
intrusive thoughts of the sexual trauma.  The examiner stated
that after reviewing the PTSD criteria, he was unable to
elicit enough symptoms that would warrant a diagnosis of PTSD
and subsequently these would fall under a diagnosis of
anxiety disorder not otherwise specified with symptoms in the
PTSD range related to his experiences of sexual abuse as a
child.  The examiner also noted, by record review, that the
veteran had some history of intrusive thoughts relating to a
truck crash two years ago, but again, the examiner stated
that these did not meet the criteria for PTSD and were also
not related to his service experience.  The examiner gave an
Axis I diagnosis of panic disorder without agoraphobia, and
anxiety disorder not otherwise specified.

Outpatient treatment records dated from November 2003 through
June 2005, contain a January 2004 entry again diagnosing the
veteran with chronic PTSD and depressive disorder and noting
that he continued to experience daytime vigilance with some
exaggerated startle, and noted that he can have nightmares
and re-experiencing of memories; however, the report does not
discuss what memories he re-experienced, i.e. whether these
memories were related to service or not.  A December 2004
entry noting that overall the veteran was fair, and provided
an axis I diagnosis of PTSD, well controlled, and depressive
disorder in partial remission.

Outpatient treatment records dated from January 2006 through
September 2006, contain the most recent September 2006 axis I
diagnoses of PTSD, well controlled, depressive disorder, NOS,
in partial remission, and anxiety disorder NOS; however none
of the records connect any of these current diagnoses to
military service.

III.  Law and Analysis

Service connection may be granted for disability resulting
from disease or injury incurred or aggravated during active
military service.  38 U.S.C.A. � 1110 (West 2002); 38 C.F.R.
� 3.303.  Service connection may also be granted for any
injury or disease diagnosed after service, when all the
evidence, including that pertinent to service, establishes
that the disease or injury was incurred in service.  38
C.F.R. � 3.303(d).  Generally, service connection requires
(1) medical evidence of a current disability, (2) medical
evidence, or in certain circumstances lay testimony, of in-
service incurrence or aggravation of an injury or disease,
and (3) medical evidence of a nexus between the current
disability and the in-service disease or injury.  See Caluza
v. Brown, 7 Vet. App. 498 (1995).

Certain chronic diseases, including psychoses, may be
presumptively service connected if they become manifest to a
degree of 10 percent or more within one year of leaving
qualifying military service.  38 C.F.R. �� 3.307(a)(3);
3.309(a) (2007).

Further, it is not enough that an injury or disease occurred
in service; there must be chronic disability resulting from
that injury or disease.  If there is no showing of a
resulting chronic condition during service, then a showing of
continuity of symptomatology after service is required to
support a finding of chronicity.  38 C.F.R. � 3.303(b).

PTSD

Service connection for PTSD specifically requires (1) medical
evidence diagnosing the condition in accordance with
38 C.F.R. � 4.125(a); (2) a link, established by medical
evidence, between current symptoms and an in-service
stressor; and (3) credible supporting evidence that the
claimed in-service stressor occurred.  38 C.F.R. � 3.304(f).
Where it is determined that the veteran was engaged in combat
with the enemy and the claimed stressor is related to such
combat, the veteran's lay testimony regarding the claimed
stressor is accepted as conclusive as to its actual
existence, absent 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.  See 38 U.S.C.A. � 1154(b) (West 2002); 38
C.F.R. � 3.304(f).  However, where VA determines that the
veteran did not engage in combat with the enemy, the
veteran's lay testimony, by itself, will not be enough to
establish the occurrence of the alleged stressor.  Instead,
the record must contain evidence that corroborates the
veteran's account as to the occurrence of the claimed
stressor.  See 38 U.S.C.A. � 1154(b); 38 C.F.R. � 3.304(d),
(f) (2007); Cohen v. Brown, 10 Vet. App. 128 (1997).
Evidence denoting participation in combat can include award
of decorations such as the Combat Action Ribbon, Combat
Infantryman Badge (CIB), Purple Heart Medal, and decorations
such as the Bronze Star Medal that have been awarded with a
Combat "V" device.

In this case, the veteran's stressor(s) must be independently
verified because his personnel records do not document combat
service.  Specifically, the veteran's DD-214 noted that the
veteran received the National Defense Service Medal, and the
Vietnam Service Medal, neither of which denote combat per se,
and further, the veteran's military occupational specialty
(MOS) was a Boatswain's mate, and the DD 214 noted the
related civilian occupation as a water transportation
occupation.

Regarding establishing a specific stressor, and obtaining
corroborating evidence that the stressor occurred, the Board
notes that the RO attempted to obtain additional information
from the veteran to verify his stressor incident(s), but he
did not respond to the request.  Specifically, the RO sent
the veteran a letter asking for a detailed description of
each incident, what he witnessed, his actual role in each
stressful incident, the dates of the incident, his location
of assigned duty station at the time of the incident, and
asked the veteran to provide the RO with information
regarding whether or not the incident involved the death of
one or more friends, and if so, the RO requested that the
veteran provide their names, and any other information about
them.

To date, although the veteran has provided some information
regarding his time spent in the military, he has not provided
detailed information such as the time, place and date range
of a stressful incident that would allow for effective
research.  In this regard, the Board notes that the veteran
did submit a letter in May 2000 noting that his PTSD was the
result of his service in Vietnam aboard the U.S.S. Picking,
stating that the most terrifying thing he ever heard was
"man your battle stations", noting that he was a pointer
and trainer in the five-inch gun mount.  In addition, during
his April 2003 VA examination, the veteran noted that he was
a Boatswain's mate which entailed moving the gun directions
up, down and to the side, and noted that his ship did shore
bombings and he never knew what they hit, and described an
occasion where Vietcong were shooting over his head.  He also
noted that although his ship was never hit, and did recall
hearing that another ship was hit but did not see the ship
get hit.  The file also contains an internet search regarding
the veteran's ship, noting that the U.S.S. Picking bombarded
enemy military, naval, and logistical areas in North and
South Vietnam.  However, despite this information regarding
his time spent in the military, because the veteran did not
describe a specific incident, or give a date range, there is
no stressor incident that can be effectively researched, and
thus no stressful event that can be independently
corroborated as required by VA regulations.

More significant is the fact that there is no medical
evidence of record that has attributed any PTSD symptoms to
an in-service experience, even the shelling activities in
which the veteran participated.  In fact, the April 2003 VA
examiner did not even provide a diagnosis of PTSD.  Rather,
the VA examiner opined that the veteran did not have symptoms
of PTSD related to his military service, noting that he did
not have intrusive thoughts, nightmares, episodes of
reliving, or avoidant symptoms.  However, the examiner noted
that although not experiencing intrusive thoughts, the
veteran did describe a history of intrusive thoughts in the
past related to his sexual experiences with his brother at a
young age, and a post-service truck accident.  Based on this
information, the examiner stated that he was unable to elicit
enough symptoms that would warrant a diagnosis of PTSD and
stated that any symptoms the veteran experienced would fall
under a diagnosis of anxiety disorder, with symptoms in the
PTSD range related to his experiences of sexual abuse as a
child.  The examiner gave an axis I diagnosis of panic
disorder and anxiety disorder, not otherwise specified, and
did not diagnose the veteran with PTSD.

The record nevertheless contains private psychiatric
evaluations and progress notes from the Monroe Clinic, the
Shullsburg clinic, and records from the Madison VAMC, all of
which contain clinical assessments of PTSD.  Other than the
December 2004 psychiatric evaluation by J.L. discussed below,
none of the voluminous psychiatric records that found PTSD
relates the disability to any in-service stressful event, or
in any other way attributes PTSD to military service.

The Board notes that Dr. L., of the Monroe clinic, department
of psychiatry, in a December 2004 psychiatric evaluation,
provided an axis I diagnosis of PTSD, noting that between the
destroyer, the guns, the noises, the nightmares, the
flashbacks, and the sexual abuse by his brother, we
"probably" have a diagnosis of PTSD.  In this case,
although the examiner mentioned the veteran's Navy ship, no
specific in-service stressor/incident was noted as the basis
for the veteran's PTSD diagnosis.  As such, Dr. L's opinion
linking PTSD to the "destroyer and guns" was extremely
vague and speculative.  His opinion did not discuss whether
he reviewed the claims file; nor did it offer any further
explanation regarding the trauma the veteran experienced
aboard the Navy ship and why Dr. L. believed the veteran's
PTSD was attributable to "the destroyer and guns"-i.e.,
his military service.  Accordingly, the Board gives greater
evidentiary weight to the April 2003 VA examiner's opinion,
because he provided a detailed, thorough opinion supported by
a review of the record, including the May 1995 VA
examination, and concluded that the veteran did not have
symptoms of PTSD related to military service, and noted that
although the veteran experienced some PTSD symptoms, these
were related to his sexual abuse as a child.  See Prejean v.
West, 13 Vet. App. 444, 448-499 (2000) (the thoroughness and
detail of a medical opinion are important factors in
assessing the probative value of the opinion).

In sum, the file does not contain evidence of a corroborated
in-service stressor incident, and there is no probative
medical evidence in the file otherwise linking the veteran's
noted history of PTSD with military service.  The Board notes
that the veteran's attorney has vigorously argued that his
treating VA physician believes that he suffers from PTSD even
though the April 2003 VA examiner did not provide a diagnosis
of PTSD.  However, as noted above, obtaining a PTSD diagnosis
is only part of the analysis.  Without a link, established by
medical evidence, between current symptoms and an in-service
stressor; and credible supporting evidence that the claimed
in-service stressor occurred, both of which are lacking in
this instance, service connection for PTSD is not warranted.

Psychiatric disorder other than PTSD

A decision of the RO becomes final and is not subject to
revision on the same factual basis unless a notice of
disagreement is filed within one year of the notice of
decision.  38 U.S.C.A. � 7105; 38 C.F.R. � 20.1103.  If a
claim of entitlement to service connection has been
previously denied and that decision became final, the claim
can be reopened and reconsidered only if new and material
evidence is presented with respect to that claim.  38
U.S.C.A. � 5108; see Manio v. Derwinski, 1 Vet. App. 140, 145
(1991).

The Board must consider the question of whether new and
material evidence has been received because it goes to the
Board's jurisdiction to reach the underlying claim and
adjudicate the claim de novo.  See Jackson v. Principi, 265
F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380
(Fed. Cir. 1996).  If the Board finds that no such evidence
has been offered, that is where the analysis must end, and
what the RO may have determined in that regard is irrelevant.
Barnett, supra. Further analysis, beyond consideration of
whether the evidence received is new and material, is neither
required nor permitted.  Id. at 1384.  See also Butler v.
Brown, 9 Vet. App. 167, 171 (1996).

"New" evidence is evidence not previously submitted to
agency decision makers.  "Material" evidence is evidence
that, by itself or when considered with previous evidence of
record, relates to an unestablished fact necessary to
substantiate the claim.  New and material evidence can be
neither cumulative nor redundant of the evidence of record at
the time of the last prior denial of the claim sought to be
reopened, and must raise a reasonable possibility of
substantiating the claim.  38 C.F.R. � 3.156(a).  In
determining whether evidence is new and material, the
"credibility of the evidence is to be presumed."  Justus v.
Principi, 3 Vet. App. 510, 513 (1992).

Thus, the veteran's claim may not be reopened unless VA has
received evidence that was both not of record at the time of
the September 1995 denial, and that also raises a reasonable
possibility of substantiating the claim that the veteran's
acquired psychiatric disorder was incurred in or aggravated
by his military service.

At the time of the September 1995 denial, the evidence of
record consisted of the veteran's service medical records
(SMRs), service personnel records, hospital reports from
Memorial hospital dated in March 1976, August 1976 and
November 1977 related to treatment for gastroenteritis; and a
May 1995 VA examination that diagnosed the veteran with panic
disorder, without agoraphobia, and dysthymia, but did not
relate either disability to military service.

The evidence received since the September 1995 denial
consists of SSA records that note a primary diagnosis of
anxiety disorder and a secondary diagnosis of affective
disorder and noted that because of his inability to hold a
job, the veteran's self esteem gets pretty low, which leads
to depression or a panic attack; a service treatment plan
document dated in December 1994 noting that the veteran
complained of chronic anxiety which made it difficult to
work; a May 2002 statement from the veteran discussing his
time in the military; a September 2001 statement from the
veteran discussing his current psychiatric state; progress
notes from the Monroe Clinic dated from January 1995 through
July 1999; a psychiatric evaluation by Dr. L. dated in
December 1994; a psychiatric evaluation by Dr. R. of the
Monroe clinic dated in November 1995; progress notes dated
from June 2001 through October 2003, which contain a June
2001 axis I diagnosis of adjustment disorder--not otherwise
specified, and anxiety disorder, but do not discuss a
connection to military service; outpatient treatment records
from the Madison VAMC dated from November 2003 through June
2005; January 2006 through March 2006; and May 2006 through
September 2006, which contain diagnoses of depressive
disorder, including a January 2004 axis I diagnosis of
depressive disorder, and a March 2006 diagnosis of depressive
disorder in partial remission.  In addition, the record
contains an April 2003 VA examination which diagnosed the
veteran with panic disorder without agoraphobia, and anxiety
disorder not otherwise specified.

Although the aforementioned records are new, in the sense
that the progress notes, outpatient treatment reports,
private medical records, statements from the veteran, SSA
records and VA examination, were not of record at the time of
the 1995 denial, the records are not material because when
considered alone or with previous evidence of record, this
newly submitted evidence does not raise a reasonable
possibility of substantiating the claim.  Specifically,
although the newly submitted evidence contains diagnoses of
depressive disorder, anxiety disorder, and panic disorder and
notes complaints of chronic anxiety, none of these records
provides a link between any acquired psychiatric disorder and
the veteran's period of military service.  Without any new
evidence relating a psychiatric disorder to his time spent in
the military, the new evidence does not raise a reasonable
possibility of substantiating the claim.

Here, the determinative, but missing, evidence would be
medical evidence that an acquired psychiatric disorder either
began during or worsened during military service.  The
veteran is not competent to provide such medical information
regarding the nature of a disease or its progression;
consequently, his assertions in this regard do not raise a
reasonable possibility of substantiating his claim.  Because
new and material evidence has not been received, the claim to
reopen is denied.

ORDER

Entitlement to service connection for PTSD is denied.

New and material evidence having not been received to reopen
a claim of entitlement to service connection for a
psychiatric disorder other than PTSD, the application to
reopen is denied.

________________________________
MARK F. HALSEY
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


judge_norm: L M BARNARD

disposition: remanded

text:
Citation Nr: 0805000
Decision Date: 02/12/08    Archive Date: 02/20/08

DOCKET NO.  06-12 823	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan,
the Commonwealth of Puerto Rico

THE ISSUE

Entitlement to an initial evaluation in excess of 20 percent
for disc bulges, multi-level and degenerative joint disease
of the lumbar spine (low back disability).

ATTORNEY FOR THE BOARD

Steven D. Reiss, Senior Counsel

INTRODUCTION

The veteran served on active duty from June 1966 to June
1968, from January to July 1991, and from January 2003 to
June 2004.

This appeal comes before the Board of Veterans' Appeals (the
Board) on appeal from a July 2005 rating decision by the San
Juan, the Commonwealth of Puerto Rico, Regional Office (RO)
of the Department of Veterans Affairs (VA) that granted
service connection for low back disability and assigned a 20
percent rating, effective June 6, 2004.

The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC.  VA will notify the
appellant if further action is required.

REMAND

In December 2004, the veteran was afforded a formal VA
examination.  In his November 2005 Notice of Disagreement,
the veteran noted that he was discharged from the Puerto Rico
National Guard, effective November 21, 2005, due to
"incapacitating pain" attributable to his service-connected
intervertebral disc syndrome.  As the RO acknowledged in the
February 2006 Statement of the Case, the a physical profile
from the Puerto Rico National Guard states that a physician
recommended the veteran's retirement due to his "chronic
incapacitating lower back pain."

In light of the foregoing, the Board concludes that the
record indicates that the veteran's low back disability has
worsened since the most recent examination, which was
conducted in December 2004.  Under the circumstances, VA is
required to afford him a contemporaneous VA examination to
assess the current nature, extent and severity of his low
back disability.  See Palczewski v. Nicholson, 21 Vet.
App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403
(1997); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186
(1995).  Thus, the Board has no discretion and must remand
this claim.

The Board also observes that the veteran receives VA
treatment for this condition, and records of his VA care,
dated since December 2004, have not been associated with the
claims folder.  Under the law, VA must obtain these records.
38 U.S.C.A. � 5103A (West 2002); 38 C.F.R. � 3.159(c) (2007).
For this reason as well, the claim must be remanded.

Accordingly, the case is REMANDED for the following action:

1.  The AMC should obtain any pertinent
medical records from the Arecibo VA
Medical Center, dated since December
2004.

2.  After associating with the claims
folder any pertinent outstanding
records, the AMC should schedule the
veteran for an appropriate VA
examination to determine the nature,
extent and severity of his low back
disability.  The claims folder should
be made available to and reviewed by
the examiner.  All indicated tests,
including range of motion studies,
should be performed.  The examiner
should express the findings of range of
motion studies in degrees and in
relation to normal range of motion, and
should fully describe any pain,
weakened movement, excess fatigability,
and incoordination present.  To the
extent possible, the examiner should
express any functional loss in terms of
additional degrees of limited motion of
the affected joint.

The examiner must also identify any
neurological impairment, to
specifically include stating whether
the veteran has bowel or bladder
problems.  He or she must also state
whether the veteran has pain or
numbness in his buttocks or lower
extremities.

The examiner should set forth a
complete rationale for all conclusions
in a legible report.

3.  The AMC should readjudicate the
claim.  In doing so, the RO must
specifically consider whether a
separate rating is warranted for left
lower extremity radiculopathy.  If the
benefits sought on appeal are not
granted in full, a Supplemental
Statement of the Case should be issued
and the veteran provided an 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).

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. 2007).

_________________________________________________
L.M. BARNARD
Acting Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. � 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims.  This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. � 20.1100(b) (2007).


text:
Citation Nr: 0806000
Decision Date: 02/21/08    Archive Date: 03/03/08

DOCKET NO.  04-27 819	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit,
Michigan

THE ISSUE

Entitlement to service connection for a psychiatric disorder,
including post-traumatic stress disorder (PTSD).

REPRESENTATION

Appellant represented by:	The American Legion

ATTORNEY FOR THE BOARD

A. Cryan, Associate Counsel

INTRODUCTION

The veteran served on active duty from January 1973 to April
1974.

This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a March 2004 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Detroit, Michigan.

The veteran's case was remanded for additional development in
August 2006.

FINDINGS OF FACT

The veteran does not have a psychiatric disorder, to include
PTSD, that is related to his military service.

CONCLUSION OF LAW

The veteran does not have a psychiatric disorder, to include
PTSD, that is the result of disease or injury incurred in or
aggravated by active military service.  38 U.S.C.A. ��  1110,
5107(b) (West 2002); 38 C.F.R. �� 3.102, 3.303, 3.304(f),
4.125(a) (2007).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Veterans Claims Assistance Act of 2000

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. 2007); 38 C.F.R.
�� 3.102, 3.156(a), 3.159 and 3.326(a) (2007).

Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his representative of any information, and any
medical or lay evidence, that is necessary to substantiate
the claim.  38 U.S.C.A. � 5103(a); 38 C.F.R. � 3.159(b);
Quartuccio v. Principi, 16 Vet. App. 183 (2002).  The VCAA
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; (3) that the
claimant is expected to provide; and (4) must ask the
claimant to provide any evidence in his possession that
pertains to the claim in accordance with 38 C.F.R. �
3.159(b)(1).  VCAA notice should be provided to a claimant
before the initial unfavorable agency of original
jurisdiction (AOJ) decision on a claim.  Pelegrini v.
Principi, 18 Vet. App. 112 (2004); but see Mayfield v.
Nicholson, 19 Vet. App. 103, 128 (2005), rev'd on other
grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir.
2006) (when VCAA notice follows the initial unfavorable AOJ
decision, subsequent RO actions may "essentially cure[] the
error in the timing of notice").

The Board notes that the veteran was apprised of VA's duties
to both notify and assist in correspondence dated in October
2003 and August 2006.  (Although the complete notice required
by the VCAA was not provided until after the RO adjudicated
the appellant's claim, any timing errors have been cured by
subsequent RO actions.  Id.)

Specifically regarding VA's duty to notify, the notifications
to the veteran apprised him of what the evidence must show to
establish entitlement to each of the benefits sought, what
evidence and/or information was already in the RO's
possession, what additional evidence and/or information was
needed from the veteran, what evidence VA was responsible for
getting, and what information VA would assist in obtaining on
the veteran's behalf.  The RO specifically requested that the
veteran either identify or submit any evidence he had
pertaining to his claim.  By way of the August 2006
correspondence, the veteran was apprised of the criteria for
assigning disability ratings and for award of an effective
date.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473
(2006).  The RO also provided a statement of the case (SOC)
and two supplemental statements of the case (SSOCs) reporting
the results of its reviews of issues on appeal and the text
of the relevant portions of the VA regulations.

Regarding VA's duty to assist, the RO obtained the veteran's
service medical records (SMRs), and VA and private medical
records, and secured an examination in furtherance of his
claim.  VA has no duty to inform or assist that was unmet.

II.  Background

The veteran's service medical records are negative for any
reference to treatment for or complaints related to
psychiatric disability.  The veteran's entrance examination
dated in December 1972 and his separation examination dated
in April 1974 revealed normal psychiatric evaluations.  The
veteran's service personnel records reveal that the veteran
was discharged due to substandard performance and inability
to adapt to military service.

Associated with the claims file is a psychiatric examination
dated in March 1984 performed by L. Finkelstein, M.D.  Dr.
Finkelstein diagnosed the veteran with adjustment disorder
with mixed disturbances of emotions and conduct, atypical
anxiety disorder, and mixed personality disorder.  Dr.
Finkelstein opined that the veteran had emotional problems
for some time pre-existing his job (at Detroit Diesel).  He
said that work pressures did cause a marked worsening of the
veteran's symptoms as well as impairment in his functioning.
He concluded that real events occurring during the veteran's
employment (at Detroit Diesel) have contributed to and
aggravated his disabling condition in a significant manner.

Also associated with the claims file is a psychiatric
evaluation dated in October 1984 performed by G. Forrer, M.D.
Dr. Forrer diagnosed the veteran with severe psychoneurosis,
phobic type with marked anxiety.  The examiner said that the
disorder was not due to his work contacts or circumstances
but has been of virtually lifelong duration.

The veteran was afforded a VA examination in January 1985 at
which time he claimed nervousness, anxiety and depression.  A
neuropsychiatric examination revealed a diagnosis of
generalized anxiety disorder associated with some phobic
features and a history of drug abuse, mescaline, and cocaine.
The examiner did not relate the diagnoses to the veteran's
military service.

The veteran was afforded another VA examination in September
1985 at which time he reported anxiety, nervousness, and
depression.  The examiner diagnosed the veteran with anxiety
disorder, rule out schizophrenia, schizoaffective.  The
examiner said there was also possibly evidence of a schizo-
personality disorder.

Associated with the claims file are private treatment reports
from Sacred Heart Healthcare dated in May 2003 which reveal
diagnoses of alcohol dependence and cocaine (crack)
dependence.

Associated with the claims file are private treatment reports
from Turning Point Hospital dated from January 2004 to July
2004.  The records document diagnoses of crack cocaine abuse,
alcohol abuse, paranoid schizophrenia, and depression.  His
psychosocial stressors were reported to be difficulties with
the consequences of chronic relapsing, homelessness, and
socioeconomic concerns.

Associated with the claims file are private treatment reports
from Hollywood Pavilion dated from February 2004 to July
2005.  The records document diagnoses of major depression,
polysubstance drug abuse, and mixed bipolar disorder.

Associated with the claims file are private treatment reports
from Focus Healthcare of Ohio dated from January 2004 to June
2004.  The records reveal diagnoses of alcohol and cocaine
dependence, and depressive disorder.

VA outpatient treatment reports dated from June 2003 to
August 2006 reveal diagnoses of alcohol dependence, cocaine
abuse, rule out substance induced mood disorder, rule out
substance induced psychoses, history of schizoaffective
disorder, and depressive disorder.

A psychiatric evaluation was performed in January 2007 by
L. Stevens, M.D., of Doctors' Hospital.  The veteran was
diagnosed with alcohol dependence, cocaine dependence,
recurrent severe major depression, and rule out bipolar based
on the limited history available.

Following a February 2007 psychological consultation,
M. Davenport, Ph.D., diagnosed the veteran with a history of
polysubstance dependence, a history of post-traumatic stress
disorder, features of dysthymic disorder, and mild cognitive
disorder not otherwise specified.  The examiner noted that
the veteran's stressors related to estrangement from a
functional social/family role and war-related trauma.

The veteran was afforded a VA examination in March 2007.  The
veteran reported that he served aboard a ship while in the
Navy.  He said he smoked marijuana and drank alcohol.  He
said the ship went out on frequent tours for up to three
months in duration.  The veteran said he witnessed some
homosexuality and he said on a couple of occasions men went
overboard and had to be rescued.  He said he once saw an
aircraft carrier go down, but he said the men onboard
survived the accident.  He said his ship never saw combat and
was eventually stationed in Washington.  The veteran reported
that he began using various other drugs in addition to
smoking marijuana and drinking alcohol.  The examiner
reported that a review of the veteran's medical records
revealed a long history of psychiatric care on and off for
many years.  He noted that the veteran's most prominent
problem was substance abuse.  The examiner indicated that the
veteran had also received diagnoses of depression related to
his substance abuse and schizophrenia.  The examiner
diagnosed the veteran with alcohol and cocaine dependence and
mood disorder.  He noted that the veteran did not experience
a significantly traumatic event that led to significant re-
experiencing, avoidance, or hypervigilant symptoms.  He said
the veteran did not meet the criteria for PTSD as described
by DSM-IV.  He indicated that the veteran's major problem was
his substance abuse history.  He said it was difficult to
tell the exact diagnosis of the veteran's mood disorder.  He
said there was no evidence to support past diagnoses of
schizophrenia.  He concluded that there was no evidence to
suggest that the veteran's psychiatric condition was related
to his active duty service.

An addendum opinion dated in August 2007 was also obtained.
The examiner reviewed the results of psychological testing
performed at VA in April 2007, which revealed that the
veteran's performance on the Impact of Events Scale (IES),
PTSD Checklist-Military (PCL-M), and Mississippi Scale of
Combat-Related Stress revealed results consistent with
individuals diagnosed with PTSD.  The VA examiner said that
in spite of the results of the psychological testing, his
conclusion from the March 2007 examination remained
unchanged.  He said that the testing revealed that the
veteran endorsed symptoms that were consistent with PTSD but
that the clinician who administered the psychological testing
specifically noted that the testing should not be used in
place of a clinical examination.  The examiner noted that the
veteran did not report a traumatic event consistent with
criterion A in DSM-IV of a diagnosis of PTSD during the
clinical examination in March 2007.  He concluded that in
spite of reporting some PTSD symptoms, he did not believe
that the veteran met the full criteria for PTSD as specified
in DSM-IV.

III.  Analysis

The law provides that service connection may be granted for
disability resulting from disease or injury incurred in or
aggravated by service.  38 U.S.C.A. � 1110 (West 2002); 38
C.F.R. �� 3.303, 3.304 (2007).

The chronicity provisions of 38 C.F.R. � 3.303(b) are
applicable where evidence, regardless of its date, shows that
a veteran had a chronic condition in service, or during an
applicable presumptive period, and still has such condition.
Such evidence must be medical unless it relates to a
condition as to which under case law of the United States
Court of Appeals for Veterans Claims (Court) lay observation
is competent.

If chronicity is not shown, service connection may still be
established on the basis of 38 C.F.R. �3.303(b) if the
condition is noted during service or during an applicable
presumptive period, and if competent evidence, either medical
or lay, depending on the circumstances, relates the present
disability to pertinent symptomatology experienced since
service.  Savage v. Gober, 10 Vet. App. 488 (1997).

Generally, service connection requires (1) medical evidence
of a current disability, (2) medical evidence, or in certain
circumstances lay testimony, of in-service incurrence or
aggravation of an injury or disease, and (3) medical evidence
of a nexus between the current disability and the in-service
disease or injury.  Pond v. West, 12 Vet. App. 341, 346
(1999); accord Caluza v. Brown, 7 Vet. App. 498 (1995).

Establishing service connection for PTSD requires that there
be medical evidence diagnosing the condition in accordance
with 38 C.F.R. � 4.125(a) (2007); a link, established by
medical evidence, between current symptoms and an in-service
stressor; and credible supporting evidence that the claimed
in-service stressor actually occurred.  38 C.F.R. � 3.304(f)
(2007).

In this case the veteran's service personnel records and
service medical records do not document combat service.
Furthermore, the service medical records do not document
treatment for any psychiatric disorders.  The veteran has not
specifically identified a stressor capable of being verified.

A salient point to be made is that the veteran does not have
a diagnosis of PTSD specifically linked to a stressor.  Dr.
Davenport's diagnoses included a history of PTSD and he noted
that the veteran stressors related to "war related trauma"
among other things.  However, as noted, the veteran has not
specifically identified a stressor capable of being verified.
The March 2007 VA examiner diagnosed the veteran with alcohol
and cocaine dependence and mood disorder.  In the August 2007
addendum opinion the examiner reviewed the results of the
psychological testing and he said that in spite of the
results of the psychological testing, his conclusion from the
March 2007 examination remained unchanged, specifically that
the veteran did not have PTSD.  He said that the testing
revealed that the veteran endorsed symptoms that were
consistent with PTSD but that the clinician administering the
psychological testing specifically noted that the testing
should not be used in place of a clinical examination.  The
examiner specifically noted that the veteran did not report a
traumatic event consistent with criteria A in DSM-IV of a
diagnosis of PTSD during the clinical examination in March
2007.  He concluded that in spite of reporting some PTSD
symptoms, he did not believe that the veteran met the full
criteria for PTSD as specified in DSM-IV.  This opinion is of
greater evidentiary weight than those that included
assessments of PTSD because it was based on a review of the
record and included more detailed analysis about the very
question before VA-whether the veteran met the criteria for
the diagnosis.  Absent a diagnosis of PTSD related to a
verified stressor, service connection must be denied.

With regard to the claim for a psychiatric disorder other
than PTSD, the Board notes that the veteran's has been
diagnosed with a variety of psychological disorders.
However, none of the examiners of record, either VA or
private, linked any of the veteran's psychiatric disorders
with the veteran's period of service.  The March 2007 VA
examiner specifically opined that there was no evidence to
suggest that the veteran's psychiatric condition was related
to his active duty service.  Consequently, service connection
for a psychiatric disorder including PTSD is not warranted.

The Board has considered the veteran's assertions that he has
a psychiatric disorder to include PTSD related to his active
duty service, but finds that there is no evidence of record
showing that he has the specialized medical education,
training, and experience necessary to render competent
medical opinion as to the diagnosis and etiology of current
mental disability(ies).  Espiritu v. Derwinski, 2 Vet. App.
492 (1992); 38 C.F.R. � 3.159(a)(1) (2007).  Consequently,
the veteran's own assertions as to the diagnosis and etiology
of variously diagnosed mental disorders, including PTSD, have
no probative value.

The Board has considered the doctrine of reasonable doubt,
but finds that the record does not provide an approximate
balance of negative and positive evidence on the merits.  The
Board is unable to identify a reasonable basis for granting
service connection for a psychiatric disorder, including
PTSD.  Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38
U.S.C.A. � 5107(b) (West 2002); 38 C.F.R. � 3.102 (2007).
The preponderance of the evidence is against the claim.

ORDER

Entitlement to service connection for a psychiatric disorder,
including PTSD, is denied.

________________________________
MARK F. HALSEY
Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs


judge_norm: T L REYNOLDS

disposition: dismissed

text: The appeal is dismissed.

text:
Citation Nr: 0807000
Decision Date: 02/29/08    Archive Date: 03/06/08

DOCKET NO.  05-38 819A	)	DATE
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia,
South Carolina

THE ISSUE

1.  Entitlement to service connection for post-traumatic
stress disorder.

2.  Entitlement to service connection for chronic depression
and anxiety.

3.  Entitlement to service connection for hepatitis C.

REPRESENTATION

Appellant represented by:	The American Legion

ATTORNEY FOR THE BOARD

A. P. Simpson, Counsel

INTRODUCTION

The veteran served on active duty from February 1970 to
September 1971.

This case comes before the Board of Veterans' Appeals (Board)
on appeal from the Columbia, South Carolina, Department of
Veterans Affairs (VA) Regional Office (RO).

In November 2007, the veteran testified at a video conference
hearing before the undersigned Acting Veterans Law Judge.  A
transcript of that hearing has been associated with the
claims file.

In January 2007, the veteran had filed a motion to advance
his case on the docket due to terminal illness.  Regrettably,
the Board was unable to rule on the motion before the
veteran's death.  The motion to advance is now moot.

FINDING OF FACT

On February 5, 2008, the Board was notified in writing that
the veteran died in January 2008.

CONCLUSION OF LAW

Due to the death of the appellant, the Board has no
jurisdiction to adjudicate the merits of these claims.  38
U.S.C.A. � 7104(a) (West 2002); 38 C.F.R. � 20.1302 (2007).

REASONS AND BASES FOR FINDING AND CONCLUSION

Unfortunately, the veteran died during the pendency of the
appeal.  As a matter of law, appellants' claims do not
survive their deaths.  Zevalkink v. Brown, 102 F.3d 1236,
1243-44 (Fed. Cir. 1996); Smith v. Brown, 10 Vet. App. 330,
333-34 (1997); Landicho v. Brown, 7 Vet. App. 42, 47 (1994).
This appeal on the merits has become moot by virtue of the
death of the veteran and must be dismissed for lack of
jurisdiction.  See 38 U.S.C.A. � 7104(a) (West 2002); 38
C.F.R. � 20.1302 (2007).

In reaching this determination, the Board intimates no
opinion as to the merits of this appeal or to any derivative
claim brought by a survivor of the veteran.  38 C.F.R.
� 20.1106 (2007).

ORDER

The appeal is dismissed.

_____________________________________________
T. L. REYNOLDS
Acting Veterans Law Judge, Board of Veterans' Appeals

 Department of Veterans Affairs