Citation Nr: 1008493 Decision Date: 03/08/10 Archive Date: 03/17/10
DOCKET NO. 08-03 582 ) DATE ) )
On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota
THE ISSUES
1. Entitlement to service connection for anxiety.
2. Entitlement to service connection for depression.
3. Entitlement to service connection for posttraumatic stress disorder ("PTSD").
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of the United States
ATTORNEY FOR THE BOARD
T. Y. Hawkins, Associate Counsel
INTRODUCTION
The Veteran served on active duty from September 2001 to June 2007; January 2002 to May 2002; January 2003 to February 2005; and August 2005 to December 2006.
This matter comes before the Board of Veterans' Appeals ("Board") on appeal from a June 2007 rating decision issued by the Department of Veterans Affairs ("VA") Regional Office ("RO") in St. Paul, Minnesota, which denied the Veteran's claims of entitlement to service connection for anxiety, depression and PTSD.
In August 2007, the Veteran requested an informal conference before a Decision Review Officer at the St. Paul RO. In April 2008, he was notified that a hearing had been scheduled for June 2008. However, the Veteran failed to appear for the conference.
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
The Veteran contends that he suffers from anxiety, depression and PTSD as a result of active duty service. Specifically, he contends that, as a result of several in-service stressors involving combat, he now experiences the claimed mental disorders.
In order to establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) the in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service" - the so- called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for PTSD specifically requires (1) medical evidence establishing a diagnosis of the disability, (2) credible supporting evidence that the claimed in-service stressor actually occurred, and (3) a link, established by medical evidence, between the current symptomatology and the claimed in-service stressor. See 38 C.F.R. § 3.304(f) (2009).
If the evidence establishes that the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. See 38 C.F.R. § 3.304(f)(1) (2008); see also, 38 U.S.C.A. § 1154(b) (West 2002 & Supp. 2008). Otherwise, the law requires verification of a claimed stressor. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d), (f) (2008); Gaines v. West, 11 Vet. App. 353, 357-58 (1998).
The ordinary meaning of the phrase "engaged in combat with the enemy," as used in 38 U.S.C.A. § 1154(b), requires that a veteran have participated in events constituting an actual fight or encounter with a military foe, or hostile unit or instrumentality. VAOPGCPREC 12-99 (Oct. 18, 1999). Mere service in a combat zone does not establish that a veteran engaged in combat with the enemy. Id. Service department evidence that a veteran engaged in combat or that a veteran was awarded the Purple Heart Medal, Combat Infantryman Badge, or similar combat citation will be accepted, in the absence of evidence to the contrary, as conclusive evidence of the claimed in-service stressor. Id.
The provisions of 38 U.S.C.A. § 1154(b) do not allow a combat veteran to establish service connection with lay testimony alone, however. Rather, the statute relaxes the evidentiary requirements for proving certain events alleged to have occurred during service when there is no official record. It cannot be used to etiologically link the alleged service event to a current disability. Gregory v. Brown, 8 Vet. App. 563, 567 (1996).
As an initial matter, the Board notes that the Veteran's DD 214 reveals that he served in Iraq and Kuwait as a combat engineer during the Persian Gulf War. It further shows that he received the Combat Action Badge. The Board therefore concedes his combat service, and his claimed in-service stressors are presumed to have occurred.
A review of the Veteran's service treatment records, however, reveals no complaints of, treatment for or diagnosis of any psychiatric or psychological disorders during service.
As previously stated, in order to establish service connection for PTSD, a veteran must have a current diagnosis of PTSD directly related to his in-service stressor. See 38 C.F.R. § 3.304(f) (2009). He must also show the existence of a present disability in order to establish a right to service connection for any other claimed disorder. See Shedden, supra. With respect to the first, or "current disability" requirement, the United States Court of Appeals for Veterans Claims ("Court") has recognized that, "[i]n the absence of proof of a present disability, there can be no valid claim" of service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Caluza v. Brown, 7 Vet. App. 498, 505 (1995) (recognizing that "[a] service-connection claim must be accompanied by evidence which establishes that the claimant currently has the claimed disability."); see also Chelte v. Brown, 10 Vet. App. 268, 271, 272 (1997) (holding that the veteran's claim was not well grounded when the evidence "establishe[d] only that the veteran had a [disability] in the past, not that he has a current disability").
In this case, although the Veteran is shown to have participated in combat, there is no probative evidence that he has a current diagnosis of PTSD. There is also no probative evidence that he has a current diagnosis of anxiety or depression.
In this regard, the Board notes that, during a June 2007 VA mental health evaluation, the VA examiner found that the Veteran did not meet the full diagnostic criteria for PTSD. Moreover, despite the Veteran's contention that the examination was inadequate because it allegedly tested only for PTSD and no other psychiatric disorders, the examination report shows that the examiner also concluded that the Veteran did not have any other psychiatric disorders, including anxiety and depression. Rather, he specifically found that psychometric testing and a clinical interview suggested that the Veteran demonstrated a mild level of distress at most, and therefore, did not exhibit any clinically significant psychiatric disorders.
In response to these findings, the Veteran has asserted that he has participated in outpatient mental health treatment at the Duluth Minnesota Vet Center, therefore implying that he does in fact have a currently-diagnosed mental illness or illnesses. See Notice of Disagreement ("NOD"), August 2007.
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Citation Nr: 1008493 Decision Date: 03/08/10 Archive Date: 03/17/10
DOCKET NO. 08-03 582 ) DATE ) )
On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota
THE ISSUES
1. Entitlement to service connection for anxiety.
2. Entitlement to service connection for depression.
3. Entitlement to service connection for posttraumatic stress disorder ("PTSD").
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of the United States
ATTORNEY FOR THE BOARD
T. Y. Hawkins, Associate Counsel
INTRODUCTION
The Veteran served on active duty from September 2001 to June 2007; January 2002 to May 2002; January 2003 to February 2005; and August 2005 to December 2006.
This matter comes before the Board of Veterans' Appeals ("Board") on appeal from a June 2007 rating decision issued by the Department of Veterans Affairs ("VA") Regional Office ("RO") in St. Paul, Minnesota, which denied the Veteran's claims of entitlement to service connection for anxiety, depression and PTSD.
In August 2007, the Veteran requested an informal conference before a Decision Review Officer at the St. Paul RO. In April 2008, he was notified that a hearing had been scheduled for June 2008. However, the Veteran failed to appear for the conference.
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
The Veteran contends that he suffers from anxiety, depression and PTSD as a result of active duty service. Specifically, he contends that, as a result of several in-service stressors involving combat, he now experiences the claimed mental disorders.
In order to establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) the in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service" - the so- called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for PTSD specifically requires (1) medical evidence establishing a diagnosis of the disability, (2) credible supporting evidence that the claimed in-service stressor actually occurred, and (3) a link, established by medical evidence, between the current symptomatology and the claimed in-service stressor. See 38 C.F.R. § 3.304(f) (2009).
If the evidence establishes that the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. See 38 C.F.R. § 3.304(f)(1) (2008); see also, 38 U.S.C.A. § 1154(b) (West 2002 & Supp. 2008). Otherwise, the law requires verification of a claimed stressor. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d), (f) (2008); Gaines v. West, 11 Vet. App. 353, 357-58 (1998).
The ordinary meaning of the phrase "engaged in combat with the enemy," as used in 38 U.S.C.A. § 1154(b), requires that a veteran have participated in events constituting an actual fight or encounter with a military foe, or hostile unit or instrumentality. VAOPGCPREC 12-99 (Oct. 18, 1999). Mere service in a combat zone does not establish that a veteran engaged in combat with the enemy. Id. Service department evidence that a veteran engaged in combat or that a veteran was awarded the Purple Heart Medal, Combat Infantryman Badge, or similar combat citation will be accepted, in the absence of evidence to the contrary, as conclusive evidence of the claimed in-service stressor. Id.
The provisions of 38 U.S.C.A. § 1154(b) do not allow a combat veteran to establish service connection with lay testimony alone, however. Rather, the statute relaxes the evidentiary requirements for proving certain events alleged to have occurred during service when there is no official record. It cannot be used to etiologically link the alleged service event to a current disability. Gregory v. Brown, 8 Vet. App. 563, 567 (1996).
As an initial matter, the Board notes that the Veteran's DD 214 reveals that he served in Iraq and Kuwait as a combat engineer during the Persian Gulf War. It further shows that he received the Combat Action Badge. The Board therefore concedes his combat service, and his claimed in-service stressors are presumed to have occurred.
A review of the Veteran's service treatment records, however, reveals no complaints of, treatment for or diagnosis of any psychiatric or psychological disorders during service.
As previously stated, in order to establish service connection for PTSD, a veteran must have a current diagnosis of PTSD directly related to his in-service stressor. See 38 C.F.R. § 3.304(f) (2009). He must also show the existence of a present disability in order to establish a right to service connection for any other claimed disorder. See Shedden, supra. With respect to the first, or "current disability" requirement, the United States Court of Appeals for Veterans Claims ("Court") has recognized that, "[i]n the absence of proof of a present disability, there can be no valid claim" of service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Caluza v. Brown, 7 Vet. App. 498, 505 (1995) (recognizing that "[a] service-connection claim must be accompanied by evidence which establishes that the claimant currently has the claimed disability."); see also Chelte v. Brown, 10 Vet. App. 268, 271, 272 (1997) (holding that the veteran's claim was not well grounded when the evidence "establishe[d] only that the veteran had a [disability] in the past, not that he has a current disability").
In this case, although the Veteran is shown to have participated in combat, there is no probative evidence that he has a current diagnosis of PTSD. There is also no probative evidence that he has a current diagnosis of anxiety or depression.
In this regard, the Board notes that, during a June 2007 VA mental health evaluation, the VA examiner found that the Veteran did not meet the full diagnostic criteria for PTSD. Moreover, despite the Veteran's contention that the examination was inadequate because it allegedly tested only for PTSD and no other psychiatric disorders, the examination report shows that the examiner also concluded that the Veteran did not have any other psychiatric disorders, including anxiety and depression. Rather, he specifically found that psychometric testing and a clinical interview suggested that the Veteran demonstrated a mild level of distress at most, and therefore, did not exhibit any clinically significant psychiatric disorders.
In response to these findings, the Veteran has asserted that he has participated in outpatient mental health treatment at the Duluth Minnesota Vet Center, therefore implying that he does in fact have a currently-diagnosed mental illness or illnesses. See Notice of Disagreement ("NOD"), August 2007.
In this regard, the Board notes that, in May 2008, the RO sent a letter to the Duluth Vet Center requesting copies of all the Veteran's available medical records pertaining to treatment for anxiety, depression and PTSD. In response, however, the Vet Center replied by attaching a small, handwritten "Post-it" note, signed by the Duluth Vet Center office manager, stating that "[w]e have no record of this individual." There is no indication of what efforts the RO undertook in attempting to locate the claimed treatment records.
Where VA has constructive and actual knowledge of the existence of potentially pertinent reports in the possession of a Federal agency, an attempt to obtain those reports must be made. See Hyatt v. Nicholson, 21 Vet. App. 390, 394 (2007) (holding that the relevance of documents cannot be known with certainty before they are obtained). Furthermore, 38 C.F.R. § 3.159(c)(2) provides that "VA will make as many requests as are necessary to obtain relevant records from a Federal department or agency," and that VA will end its efforts "only if VA concludes that the records sought do not exist or that further efforts to obtain those records would be futile." Id. As records in the possession of a Federal agency are deemed to be constructively of record, they must be obtained. Id.
Because the response from the Vet Center did not specifically document what efforts it took to locate the Veteran's claimed treatment reports, and in order to give the appellant every consideration with respect to the present appeal and to ensure due process, it is the Board's opinion that further development of the case is necessary. Accordingly, the case is REMANDED for the following action:
1. The RO/AMC should contact the Minnesota Vet Centers in Duluth and Minneapolis, as well as the St. Paul Veterans Resource Center, the VA Medical Centers ("VAMC") in Minneapolis and St. Cloud, and any other appropriate VA facilities and request any and all mental health treatment records for the Veteran. If the search for such records reveals negative results, the claims file must be properly documented with a memorandum as to efforts undertaken to locate the claimed documents and the unavailability of such records.
2. If records pertaining to the Veteran's treatment for anxiety, depression and/or PTSD are located, please review such records to determine whether the Veteran has a clinical diagnosis of any of these disorders. If so, the RO/AMC should return the claims folder to the clinician who performed the June 2007 evaluation to determine the nature and likely etiology of such disorder(s). If that examiner is no longer available, schedule the Veteran for a new VA mental health evaluation with a psychiatrist or psychologist. The complete claims folder must be provided to the examiner for review in conjunction with the examination, and the examiner must indicate that he or she has reviewed the file. The examiner must also elicit from the Veteran his history of mental health disorders and note that this information has been considered in formulating his or her opinion. Any and all tests deemed necessary should be performed.
The examiner should be asked to indicate whether it is at least as likely as not (i.e., whether there is at least a 50 percent probability) that such disorder is related to, or was caused or aggravated (permanent worsening as opposed to temporary flare-ups or increase in symptoms) by the Veteran's active military service. Additionally, if the examiner diagnoses the Veteran with PTSD, he or she should be asked to indicate whether it is at least as likely as not (i.e., whether there is at least a 50 percent probability) that such disorder is related to a stressor incurred during the veteran's military service. The examiner should discuss all of the Veteran's claimed stressors.
The clinician is also advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. "More likely" and "as likely" support the contended causal relationship; "less likely" weighs against the claim.
Any and all opinions must be accompanied by a complete rationale.
3. If the above search yields no information, the RO/AMC should send a letter to the appellant informing him: (a) that VA has been unable to obtain any records pertaining to the Veteran having received psychiatric/psychological treatment; (b) the efforts the RO made in attempting to obtain these records; (c) a description of any further action VA will take regarding the claim, including, but not limited to, notice that VA will decide the claim based on the evidence of record unless the claimant submits records VA was unable to obtain; and (d) notice that he is ultimately responsible for providing evidence necessary to substantiate his claim. After allowing the appellant the appropriate period of time to respond to the above letter, and if any benefit sought remains denied, the Veteran should be provided with a Supplemental Statement of the Case ("SSOC"). After the Veteran and his representative have been given the applicable time to submit additional argument, the claim should be returned to the Board for further review.
4. If, treatment records are located and the claims folder is returned for an additional medical examination and/or opinion, the issue on appeal should be readjudicated. If any benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be provided with an SSOC and afforded the opportunity to respond thereto. The matter should then be returned to the Board, if necessary, for further appellate process.
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. 2009).
_________________________________________________ ROBERT E. SULLIVAN 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) (2009).