Veteranclaims’s Blog

April 27, 2011

Single Judge Application, Ervin v. Shinseki, Bryant v. Shinseki, 23 Vet.App.

Excerpts from decision below:

“[T]he assessment of prejudice generally is case specific, demonstrated by
the appellant and based on the record.” Bryant, 23 Vet.App. at 498.
As to whether the hearing officer fulfilled his duty to suggest the submission of overlooked evidence, the answer depends on what evidence was needed to
substantiate each issue. Id.at 496-97.
In the case at hand, two questions determine whether the hearing officer should have suggested the submission of evidence: (1) did the testimony indicate that evidence of a diagnosis of PTSD related to his in-service stressor existed (or could be reduced to writing) but was not of record; and (2) did

3. The appellant does not argue that the hearing officer failed in his duty
to explain the issues fully. See Grivois v. Brown, 6 Vet.App. 136, 138 (1994) (explaining that issues or claims not argued by counsel on appeal are considered
abandoned); App. Br. at 8-9; see also U.S. VET. APP. R. 28(a)(5).

4

the testimony indicate that buddy statements existed (or could be reduced to writing) but were not of record? See id. In regard to the first question, the appellant unequivocally testified that a PTSD diagnosis relating to his in-service stressor did not exist. See R. at 262 (explaining that no psychiatrist has ever rendered an opinion that his PTSD or substance abuse was due to his time in
service because “they kept basing it on being in Vietnam”). Thus, the hearing officer did not commit any error by not suggesting that a medical nexus opinion be submitted. See Bryant, 23 Vet.App. at 493-94. In regard to the second question, the hearing officer did not suggest that the appellant might seek out supporting evidence in the form of buddy statements. See R. at 257-74. However, the appellant’s testimony failed to specify any of the individuals involved in the circumstances surrounding his averred in-service stressor and, thus, did not indicate any evidence had been overlooked that might be obtained to corroborate the incident described. Compare R. at 11 (indicating service records do not indicate the appellant was on a ship in the area where the averred stressor occurred), 260 (appellant’s testimony that “[t]he chief on my boat” asked him to retrieve a body with “the other guy”), 267 (appellant’s testimony that he did not know the dead petty officer); with Garlejo v. Derwinski, 2 Vet.App. 619, 620 (1992) (determining that after the veteran asserted that soldiers in his company could support his assertions of a shrapnel wound to the shoulder, VA failed by not informing him that he should seek out supporting evidence in the form of lay evidence from these soldiers); see also Bryant, 23 Vet.App. at 495 (explaining that in Sizemore v. Principi, 18 Vet.App. 517(1999),the claimant’s testimony suggested that buddy statements might be obtained to corroborate the incident he described). Thus, the Court is not persuaded that the hearing officer committed error under 38 C.F.R. § 3.103(c)(2). See Hilkert and Berger, both supra.
Based on a thorough review of the record, the Court cannot conclude that
the Board clearly erred in finding that the duty to assist had been met. See Gilbert, supra; R. at 6-8.

=============================================
“However, the appellant’s testimony failed to specify any of the individuals involved in the circumstances surrounding his averred in-service stressor and, thus, did not indicate any evidence had been overlooked that might be obtained to corroborate the incident described. Compare R. at 11 (indicating service records do not indicate the appellant was on a ship in the area where the averred stressor occurred), 260 (appellant’s testimony that “[t]he chief on my boat” asked him to retrieve a body with “the other guy”), 267 (appellant’s testimony that he did not know the dead petty officer); with Garlejo v. Derwinski, 2 Vet.App. 619, 620 (1992) (determining that after the veteran asserted that soldiers in his company could support his assertions of a shrapnel wound to the shoulder, VA failed by not informing him that he should seek out supporting evidence in the form of lay evidence from these soldiers); see also Bryant, 23 Vet.App. at 495 (explaining that in Sizemore v. Principi, 18 Vet.App. 517(1999),the claimant’s testimony suggested that buddy statements might be obtained to corroborate the incident he described). Thus, the Court is not
persuaded that the hearing officer committed error under 38 C.F.R. § 3.103(c)(2). See Hilkert and Berger, both supra.”

=========================================
“Thus, in this case, there is no current diagnosis of PTSD linked to the appellant’s averred in-service stressor. As such,
5

remand on the basis of this Court’s recent holding in Ervin, __ Vet. App.
at ___, 2011 WL 835470 at *7
(“[W]here, as here, the evidence includes a current diagnosis of PTSD but the Board denied the claim because there was no corroboration of the asserted stressor in service, a remand is warranted.”), is inapplicable.4

—————————————————-

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-1696
JAMES N. ELLIOTT, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before MOORMAN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
MOORMAN, Judge: The appellant, James N. Elliott, appeals through counsel
an April 23, 2009, Board of Veterans’ Appeals (Board) decision that denied entitlement to service connection for post-traumatic stress disorder (PTSD). Record (R.) at 3-12. Both parties filed briefs.1
This appeal is timely, and the Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(
a) and 7266(a). A single
judge may conduct this review because the outcome in this case is
controlled by the Court’s precedents and “is not reasonably debatable.” Frankel v. Derwinski, 1 Vet. App. 23, 25-26 (1990).
For the following reasons, the Court will affirm the Board’s April 2009
decision.

I. FACTS
Mr. Elliott served in the U.S. Coast Guard from May 1954 until March 1955,
when he was discharged due to his inaptitude. R. at 60, 102; see R. at 26. In February 1999, a VA regional office (RO) denied, in relevant part, Mr. Elliott’s claim to entitlement to service connection for PTSD. R.

On February 1, 2011, this Court sua sponte ordered this appeal stayed
pending the disposition of the appeal in Ervin v. Shinseki, U.S. Vet. App. No. 08-3287 (argued Dec. 8, 2010). Ervin has been decided; thus, the Court will lift its stay and address this appeal. See Ervin v. Shinseki, __ Vet.App. __ , No. 08-3287, 2011 WL 835470 (March 9, 2011).
1

at 1049-51. In May 2005, after further filings and procedures, the
appellant testified before the Board. R. at 257-74. He explained that his in-service stressor was recovering the decomposing body of a petty officer who had jumped from a Bay Bridge while attempting to rescue a daughter. R. at 259-60. In response to the hearing officer’s question as to whether a psychiatrist ever rendered an opinion that his PTSD or substance abuse was due to his time in service, the appellant replied: “No, they kept basing it on being in Vietnam [with the Merchant Marines].” R. at 262. On September 29, 2005, the Board remanded the appellant’s PTSD claim for further development, to include
obtaining any and all service personnel records and contacting the U.S.
Coast Guard along with the U.S. Armed Services Center for Research for Unit Records to request any available information that might corroborate the appellant’s averred in-service stressor. R. at 238-74. The RO requested the records and, thereafter, continued to deny the claim. See R. at 196-97, 234-37. On April 23, 2009, the Board denied the appellant’s claim after finding that there was no credible evidence corroborating his alleged non-combat in-service stressors and concluding that he does not have PTSD that was incurred in or aggravated by service. R. at 3-12.
The appellant argues that the Board decision should be vacated and
remanded because the Board provided an inadequate statement of reasons or bases and VA failed in its duty to assist. Appellant’s (App.)Brief(Br.) at 3. The Secretary argues that the Board’s decision should be affirmed because the appellant does not demonstrate error and there is a plausible basis in the record for the Board’s findings and its decision is supported by an adequate statement of reasons or bases. Secretary’s Br. at 4.

II. ANALYSIS
A. Adequate Statement of Reasons or Bases
The appellant argues that the Board provided an inadequate statement of
reasons or bases because it did not make a credibility determination regarding his
testimony. App. Br. at 5-8.
However, as the Secretary correctly points out, 38 C.F.R. § 3.304(f) (2010) requires “credible supporting evidence that the claimed in-service stressor occurred.” The appellant’s own testimony does not constitute supporting evidence. See Moreau v. Brown, 9 Vet.App. 389, 395-96 (1996).
Thus, the Board did not fail to properly apply 38 C.F.R. § 3.304 merely
because it did not make a
2

credibility determination regarding the appellant’s testimony. To the
extent that the Board should
have made any credibility determination, any such error was nonprejudicial
to the appellant in light of the fact that there is no supporting evidence—credible or not—that his claimed in-service stressor occurred. See 38 U.S.C. § 7261(b)(2) (providing that the Court shall take due account of the rule of prejudicial error); 38 C.F.R. 3.304(f) (requiring for service connection of PTSD “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”); R. at 11 (service records do not indicate that the appellant was on a ship in the area where the alleged stressor took place).

B. Duty to Assist
The appellant also argues that VA failed in its duty to assist by not
requesting California public records and because the Board hearing officer did not advise the appellant to submit a medical nexus opinion or letters from fellow service members in support of his claimed stressor. See App. Br. at 8-9.
First, the appellant does not suggest, much less provide anyevidence, that
he ever adequately identified to VA any relevant California public records. See App. Br. at 2,7
.2
Although VA’s duty to assist includes making “reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant’s claim for a benefit”(38 U.S.C. § 5103A(a)(1), (b)), the duty to assist “is
not boundless in its scope” and VA is only required to obtain relevant
records (including private records) that the claimant adequately identifies and authorizes the Secretary to obtain. Golz v. Shinseki, 590 F.3d 1317, 1320-21 (Fed. Cir. 2010); see Loving v. Nicholson, 19 Vet.App. 96, 102-03 (2005) (discussing requirement that the records be adequately identified if the claimant wishes the Secretary to obtain them). Given the appellant’s failure to provide any
evidence that he adequately identified all relevant public records to VA, the Court is not persuaded that the Board committed any clear error in regard to assisting the appellant in obtaining records. See Hilkert v. West, 12 Vet.App.
145, 151 (1999) (“An appellant bears the burden of persuasion on appeals
to this Court.”); Berger

The Court notes that the “Factual Background” section in the appellant’s
brief, incorporating the Board’s statement of the facts by reference, is noncompliant with Rule 28 of this Court’s Rules of Practice and Procedure. See
U.S. VET. APP. R. 28(a)(4) (must contain “the facts relevant to the issues,
with appropriate page references to the Record Before the Agency”). The Court, in its discretion, will accept the appellant’s counsel’s brief in this instance in order to expedite the judicial process, but appellant’s counsel is advised to avoid
incorporating facts “by reference” in the future.
2
3

v. Brown, 10 Vet.App. 166, 169 (1997) (“[T]he appellant . . . always
bears the burden of persuasion on appeals to this Court.”); see also Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990) (“in order for a finding of material fact made by the [Board] to be set aside, this Court must conclude that the finding
is ‘clearly erroneous'”).
Second, the appellant argues that the March 2005 hearing officer failed to
advise him to submit evidence, such as letters from fellow service members. App. Br. at 8-9.3
Under 38 C.F.R. § 3.103 (c)(2) (2010), “It is the responsibility of the employee or
employees conducting the [Board] hearings to explain fully the issues and suggest the submission of evidence which the claimant may have overlooked and which would be of advantage to the claimant’s position.” In order to follow this
regulatory mandate, a hearing officer “cannot ignore a lack of evidence in
the record on a material issue and not suggest its submission, unless the record (or the claimant at hearing) clearly shows that such evidence is not available.” Bryant v. Shinseki, 23 Vet.App. 488, 493-94 (2010) (per curiam).
The hearing officer “must suggest the submission of evidence when
testimony during the hearing indicates that it exists (or could be reduced to writing) but is not of record.” Id. at 496-97. If the hearing officer failed to fulfill his duties, the Court must determine whether any resulting error was
prejudicial to the appellant. Id. at 497-98; see 38 U.S.C. § 7261(b)(2) (providing that the Court shall take due account of the rule of prejudicial error); Mayfield v. Nicholson, 19 Vet.App. 103, 116 (2005) (stating that the key to determining whether an error is prejudicial is the effect of the error on the essential fairness of the adjudication),rev’d on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).
“[T]he assessment of prejudice generally is case specific, demonstrated by
the appellant and based on the record.” Bryant, 23 Vet.App. at 498.
As to whether the hearing officer fulfilled his duty to suggest the submission of overlooked evidence, the answer depends on what evidence was needed to
substantiate each issue. Id.at 496-97.
In the case at hand, two questions determine whether the hearing officer
should have suggested the submission of evidence: (1) did the testimony indicate that evidence of a diagnosis of PTSD related to his in-service stressor existed (or could be reduced to writing) but was not of record; and (2) did

The appellant does not argue that the hearing officer failed in his duty
to explain the issues fully. See Grivois v. Brown, 6 Vet.App. 136, 138 (1994) (explaining that issues or claims not argued by counsel on appeal are considered
abandoned); App. Br. at 8-9; see also U.S. VET. APP. R. 28(a)(5).

3
4

the testimony indicate that buddy statements existed (or could be reduced
to writing) but were not of record? See id. In regard to the first question, the appellant unequivocally testified that a PTSD diagnosis relating to his in-service stressor did not exist. See R. at 262 (explaining that no psychiatrist has ever rendered an opinion that his PTSD or substance abuse was due to his time in
service because “theykept basing it on being in Vietnam”). Thus, the
hearing officer did not commit any error by not suggesting that a medical nexus opinion be submitted. See Bryant, 23 Vet.App. at 493-94. In regard to the second question, the hearing officer did not suggest that the appellant might
seek out supporting evidence in the form of buddy statements. See R. at
257-74. However, the appellant’s testimony failed to specify any of the individuals involved in the circumstances surrounding his averred in-service stressor and, thus, did not indicate any evidence had been overlooked that might be obtained to corroborate the incident described.
Compare R. at 11 (indicating service records do not indicate the appellant was on a ship in the area where the averred stressor occurred), 260 (appellant’s testimony that “[t]he chief on my boat” asked him to retrieve a body with “the other guy”), 267 (appellant’s testimony that he did not know the dead petty officer); with Garlejo v. Derwinski, 2 Vet.App. 619, 620 (1992) (determining that after the veteran asserted that soldiers in his company could support his assertions of a shrapnel wound to the shoulder, VA failed by not informing him that he should seek out supporting evidence in the form of lay evidence from these soldiers); see also Bryant, 23 Vet.App. at 495 (explaining that in Sizemore v. Principi, 18 Vet.App. 517(1999),the claimant’s testimony suggested that buddy statements might be obtained to corroborate the incident he described). Thus, the Court is not
persuaded that the hearing officer committed error under 38 C.F.R. § 3.103(c)(2). See Hilkert and Berger, both supra.
Based on a thorough review of the record, the Court cannot conclude that
the Board clearly erred in finding that the duty to assist had been met. See Gilbert, supra; R. at 6-8.

C. Ervin v. Shinseki
The Board also noted that “while the Veteran has been diagnosed with PTSD,
this diagnosis is based upon his description of events which occurred while he was in the Merchant Marines . . . .” and that “the diagnosis of PTSD based upon his statements concerning his experience in the Merchant Marines does not provide a basis for service connection.” R. at 7,
9. Thus, in this case, there is no current diagnosis of PTSD linked to the appellant’s averred in-service stressor. As such,
5

remand on the basis of this Court’s recent holding in Ervin, __ Vet. App.
at ___, 2011 WL 835470 at *7 (“[W]here, as here, the evidence includes a current diagnosis of PTSD but the Board denied the claim because there was no corroboration of the asserted stressor in service, a remand is warranted.”), is inapplicable.4

III. CONCLUSION
After consideration of the appellant’s and the Secretary’s briefs, and a
review of the record,
the Board’s April 23, 2009, decision is AFFIRMED.
DATED: April 19, 2011
Copies to:
Peter J. Meadows, Esq.
General Counsel (027)
4
The appellant’s counsel has not presented to the Court any argument that
the change VA made on June 13, 2010, to 38 C.F.R. § 3.304(f) affected his client’s PTSD claim. See 38 C. F.R. § 3.304 (f)(3) (recently altered provision
regarding a claimed stressor which is related “to the veteran’s fear of
hostile military or terrorist activity”); App. Br. at
1-11.
6

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